College of Nurses of Ontario v. [The Member], 2014 CanLII 97526

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Zahir Hirji, RN Chairperson

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

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) LINDA ROTHSTEIN &

) EMILY LAWRENCE for

) College of Nurses of Ontario

• and - )

) ELIZABETH MCINTYRE &

) DANIELLE BISNAR for

[THE MEMBER] ) [THE MEMBER]

) JOHANNA BRADEN

) Independent Legal Counsel

) Heard: January 23-24, 2013,

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

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

AMENDED DECISION AND REASONS

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

Publication Ban

The panel made an order prohibiting the broadcasting or publishing of the identity of the client in this case or any information that would tend to identify her.

The Allegations

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

IT IS ALLEGED THAT:

1. 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 on December 8, 2009, while working as a registered nurse at [the Facility], you sexually abused a client known as [the Client].

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(7) of Ontario Regulation 799/93, in that on December 8, 2009, while working as a registered nurse at [the Facility], you abused a client known as [the Client] verbally, physically or emotionally.

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 on December 8, 2009, while working as a registered nurse at [the Facility], you engaged in conduct or performed acts, relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, and in particular with respect to your assessment, care and/or documentation of a client known as [the Client].

4. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that on December 8, 2009, while working as a registered nurse at [the Facility], you contravened a standard of practice of the profession or failed to meet a standard of practice of the profession with respect to your assessment, care, and/or documentation of a client known as [the Client].

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.

Overview

The Member is a Registered Nurse (“RN”) who obtained his Bachelor of Science in Nursing [ ] in 1993.The Member also worked [abroad], on a mixed medical/surgical floor [ ]. The Member then moved to Canada in 2005, and worked as a Personal Support Worker until he became registered with the College in August of 2006. To obtain his registration with the College, when the Member came to Canada he took a refresher program [ ] in the Spring 2005 and Winter 2006 semesters.

From July 2006 to February 2007, the Member worked in the [ ] forensic unit at [the Facility]. In February 2007, the Member transferred within the Facility to the unit referred to as [the Unit], which was a post-operative gastrointestinal and gynecological unit at the Facility. The Member worked on the Unit from February 2007 to November 2011. From September 2010 to July 2011, the Member obtained a Perioperative Certificate [ ].

The primary allegations against the Member come from [the Client], who testified as to her experience at the Facility, on the Unit, during her hospital stay beginning on December 8, 2009. At the time of these events, [the Client] was [ ] years old, married and had [ ] young children. [ ]

[The Client] was admitted to the Facility to undergo a total abdominal hysterectomy and possible bilateral oophorectomy. This surgery, which required general anaesthesia, commenced just after 0800 hours on December 8, 2009. The surgery was uneventful and concluded at about 1000 hours. After a stay in the post-anaesthesia recovery unit, [the Client] was transferred to the Unit at approximately 1445 hours. She was transferred [to the Unit, into a] shared room with two beds. [The Client] was in bed 1.

The Member was working the night shift, filling in for a colleague. He began his shift on the Unit at 1900 hrs on December 8, 2009 and had [the Client] assigned to him as one of his six clients that shift. The College alleges that during that shift, the Member sexually abused [the Client] in that he:

• Directed [the Client] to raise her gown and expose her breasts for no clinical purpose;
• Exposed [the Client]’s vaginal area during a bladder scan for no clinical purpose; and
• Touched [the Client]’s genitals following the insertion of a catheter for no clinical purpose.

If the panel finds that the Member did in fact commit sexual abuse in any one or more of the ways alleged by the College, it is not disputed that this conduct would also constitute physical and emotional abuse, a breach of the standards of practice of the profession, and conduct that would reasonably be regarded by members as disgraceful, dishonourable and unprofessional.

If the panel finds that the Member did not commit sexual abuse, then the College still asks for a finding that the Member breached the standards of practice of the profession and engaged in conduct that would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. The College says the basis for such a finding would be that the Member:

• Failed utterly in communicating to [the Client] what he intended to do in respect of his care and the rationale for what he intended to do and obtain in order to obtain informed consent;
• Exposed [the Client]’s vaginal area during a bladder scan in a manner that was not consistent with established practice; and/or
• Failed to document the results of the second bladder scan (if in fact the panel concludes that this scan was performed) and failed to report this second bladder scan to the oncoming nurses.

Both [the Client] and the Member testified at length. In addition, the panel heard testimony from another nine witnesses, including four expert witnesses, and received 75 exhibits to review. [The Client] gave firm testimony that the acts of sexual abuse occurred. The Member gave equally firm testimony that they did not.

The panel heard some evidence about how other institutions dealt with these allegations. [The Client] reported her allegations to the Facility’s social worker on December 10, 2009 and the Facility began its investigation of [the Client]’s complaint. [The Client] also reported this incident to the police in March of 2010. The police did not lay charges against the Member.

The panel did not rely on how others resolved this issue. The Facility and the police have different processes and their investigations have different purposes. The panel considered the evidence led at the hearing and made its own determination based upon that evidence.

After much deliberation and careful consideration of the evidence and submissions, the panel was unable to find that the College had met its burden to prove any of its allegations against the Member.

The Evidence

Assessment of credibility is a key part of the panel’s function. Adjudicators should approach the assessment and credibility based on logic and experience and exercising their intuition and common sense. By their very nature, sexual assaults generally do not have witnesses, just the two parties involved. In this case, the Member and [the Client] are the only witnesses to the events that occurred on the night shift of December 8-9. Although their recollection of events does not conflict in many aspects, there are some crucial areas in which they have provided dramatically opposite versions of events.

The panel approached the issue of credibility using the factors identified in Re Pitts and Director of Family Benefits Branch of the Ministry of Community and Social Services (1985) 51 O.R. (2d) 532 (H.C.J.). The panel considered:

• The appearance and demeanour of the witnesses,
• The witnesses’ opportunity to observe the matters about which they testified,
• The witnesses’ capacity to remember the events to which they testified,
• The probability or reasonability of the evidence,
• The internal consistency or inconsistency of a witness’ evidence (whether the witness contradicted himself or herself),
• The external consistency of the evidence (whether the witness’ story is consistent with other evidence in the case), and
• Whether the witnesses had an interest in the outcome of the case or some other reason to be partial to one side or another.

The panel’s assessment of the credibility of the key witnesses is contained in the evaluation of the evidence and reasons for decision, below.

The Evidence

Resolving the central issue of what happened during the Member’s shift on the night of December 8-9, 2009 required the panel to evaluate the evidence of [the Client] and the Member, as well as evidence from other witnesses, the documentary evidence and the video evidence.

The panel had the benefit of transcripts for much of the evidence that was given orally. The panel reviewed all these transcripts carefully, as well as the panel’s own notes from the hearing. It would be impossible to review all the evidence that was led, but the following summary contains the points the panel found to be the most significant.

Evidence of [the Client]

The College called [the Client] to testify to her experience on the Unit at the Facility during her post-surgical hospital stay. At the time of these events, [the Client] was [ ] years old, married [with] children. [ ]

[The Client] was admitted to the Facility to undergo a total abdominal hysterectomy and possible bilateral oopherectomy. After her surgery, and after spending some time in the post-anaesthesia recovery room, [the Client] went to the Unit at approximately 1445 hours on December 8, 2009. She was transferred into [ ] a shared room having two beds. [The Client] was in bed 1. Another female [client] occupied bed 2. There was a washroom located in the room which had both a toilet and a shower.

When she arrived on the Unit, [the Client] had an indwelling catheter in place. This was removed at 1645 by the day shift nurse. [The Client] was wearing a hospital gown and no undergarments. [The Client] had a PCA pump which administered pain medication at her control within prescribed limits, which she could activate by pushing a button. She also had an IV running fluids.

[The Client] testified that when she arrived on the Unit after her surgery, she felt normal aside from pain. She felt her head was clear and she knew her surroundings. She stated she was not having any difficulty expressing herself nor any difficulty hearing.

During cross-examination, [the Client] confirmed that in the recovery room before she went to the Unit, she was going in and out of consciousness. She acknowledged that she was experiencing the effects of the drugs that had been administered. [The Client] also acknowledged that she was receiving drugs for pain through a "pain pump" (the PCA pump) and that she had been encouraged to use it by recovery room staff. She acknowledged that when the Member encouraged her to use her pain pump, it was consistent with the doctor's orders.

She stated that when she arrived on the Unit, there was a sanitary napkin on the bed to which she was assigned. She had vaginal bleeding but said it was not heavy.

The Member began his shift at 1900 hours and was assigned to [the Client]. [The Client] recalled that her first interaction with the Member would have been sometime after 1900, probably around 1930. In her evidence in chief, [the Client] testified that the Member came into her room and introduced himself, but she admitted she did not catch his name. She stated that the Member did what she assumed would be his normal rounds, checking her blood pressure, temperature, IV bag, IV lines, and asked her how she was feeling. In response to an unrelated question several moments later, [the Client] suddenly recalled further details of her first interaction with the Member. She stated that while doing his routine checking the Member "checked the maxi pad between my legs. You know, he pulled it down and looked between my legs." [The Client] stated that the Member did not tell her why he was doing this. She said she assumed what he was doing, stating, "he kind of readjusted it, I guess."

It was during cross-examination that [the Client] testified that at her first interaction with the Member, she asked him a number of questions. [The Client] was somewhat distressed about her surgery and asked the Member to provide information on how extensive the surgery was. She wanted him to advise her of whether or not her ovaries had been removed along with her uterus. Unfortunately the Member was not able to provide her with the answers. He told her she would have to ask the doctor. [The Client] was also concerned with her inability to urinate and expressed fear about that. Later, [the Client] agreed that she was concerned about her [child] catching the bus to school. [The Client] acknowledged that although her [spouse] had been present at the [Facility] for the morning of her surgery, he had since left the country [ ] and would not return until after she was discharged from the hospital.

(a) Lifting Her Gown to Expose Her Breasts

[The Client] had received IV morphine via a PCA pump for pain control after surgery. She complained to the Member of itchiness all over her body which could have been a possible reaction to the morphine. In [the Client]’s testimony, she stated that she reported to the Member that she was feeling itchy and asked him if she could have something more for the itch. [The Client] stated that the Member asked her and gestured with his hands for her to lift her gown. She stated that the Member did not tell her to lift her gown above her breasts but, "he gestured with his hands where to lift it to, I guess would be how to describe it". Upon further questioning about this gesture, [the Client] was asked what the Member’s gesture indicated that she should do. She replied that the Member’s gesture indicated she should lift her gown "above my breasts". [The Client] said that the Member said he needed to check for a rash so she then lifted her gown and exposed her breasts. [The Client] stated that the Member did not check any other parts of her body for a rash. [The Client] was sitting erect in the bed with the head of the bed elevated supporting her back. She stated "he did not check any other part of my body: my back, my neck, my head, my legs, my arms. Then I just assumed he was going to give me the medication [for itchiness]".

This allegation – that the Member directed [the Client] to lift her gown and expose her breasts – is one of the three bases on which the College seeks a finding that the Member abused [the Client] sexually, as well as verbally, physically or emotionally. The allegation did not come to light for some time. Although [the Client] reported before leaving the Facility that she had been sexually assaulted by the Member, she did not allege during any of her initial statements (to her nurse on the next day shift, to the Facility social worker, or to the Facility Nurse Manager) that the Member had asked her or directed her to lift her gown above her breasts. This allegation first came to light some three months later.

The panel only became aware that this allegation emerged months after [the Client]’s hospital stay during [the Client]’s cross-examination. According to [the Client]’s video-taped interview with the police (which she affirmed during this hearing), it was only in March of 2010, after she finally told her [spouse] on March 15, 2010 that she believed she had been sexually assaulted while in the [Facility], that [the Client] first disclosed “all the details with regard to what had happened".

[The Client] admitted during cross-examination that she was advised there may be itchiness and that her nurse may need to check for a rash. [The Client] denied that [Nurse A], the nurse she briefly had upon arrival to the Unit late in the day shift of December 8, 2009, checked for a rash. [The Client] stated that [Nurse A] just gave her the medication for her itchiness.

After [the Client] told the Facility in March of 2010 that the Member had directed her to lift her gown above her breasts, the Facility conducted a further investigation. [Dr. A] advised [the Client] during the investigation of this complaint that it was not inappropriate for a nurse to make a request for a [client] to lift their gown to investigate a rash. When asked if she accepted that explanation, [the Client] replied, "I certainly didn't think he was lying to me." But when asked if she believed that was an explanation of what the Member had done, [the Client] replied, "No, I accepted it as an explanation of what a nurse would commonly do." [The Client]’s view was that when the Member gestured for her to lift her gown, he was not doing it to check for a rash but was doing it so he could look at her breasts for a non-clinical purpose.

(b) The Bladder Scan

[The Client] testified that during her first interaction with the Member on the night shift of December 8-9, she advised the Member that she could not urinate and was experiencing pain. Later in the evening, [the Client] was having difficulties voiding and again rang for the Member to assist her. [The Client] says the Member told her to “keep pushing your pain pump.” The Member told [the Client] he was going to have to do a bladder scan to check her bladder.

According to [the Client], the Member left the room to retrieve the bladder scanner. She stated that after he left, she got up and went to her doorway to look for him because she was in quite a bit of discomfort. She reported that she found the Member standing just outside her room. She stated she reported to him that she was in quite a bit of pain and that he replied, "just keep pushing your pain pump." She stated that after this, he did go and get the scanner.

[The Client] was asked if she knew what time this occurred. She stated she wasn't wearing a watch and did not remember if there was a clock in her room. She acknowledged that she was not tracking time but stated she knew it was after 7:00 p.m. but before midnight.

[The Client] testified that when the Member returned to her room with the bladder scanner, the Member laid her bed down flat to perform the scan. [The Client] stated that he did not explain the bladder scan to her. She stated she was wearing a hospital gown and knee high stockings to prevent clotting. When asked to describe what occurred next, [the Client] stated, "He put my bed down so I was laying down flat, and he pulled the covers down." When asked if she recalled how far, she responded, "I don't know if it was to my knees or below my knees or just above my knees or to my ankles...well, it wasn't to my ankles, but I do know that it was down far enough that it exposed my vagina." She stated, "He asked me to open my legs and he...again, he sort of gestured by touching the side of my leg." When asked how wide she opened her legs, she gestured with her hands and responded "maybe a foot, 12 inches." After some discussion about just how wide her gesture had indicated, [the Client] was asked if she could be more precise about how wide her legs were open and she replied, "No. I know that my vaginal area was exposed.”

[The Client] stated that during the scan, her gown was pulled up above her belly button, but it was below her breasts. She cannot recall how her gown got into that position, whether she put it there, or the Member did. [The Client] described gel being applied to her abdomen for the bladder scan. [The Client] has no recollection of the Member cleaning the gel off her abdomen following the scan. Nor can she recall who pulled the covers up or her gown down after the scan. [The Client] stated that initially she had no concerns about the scan and that it wasn't until the nurse on the day shift following the Member’s shift ([RN B]) did a bladder scan the next day that she realized the way the Member had done it was inappropriate.

When asked if the Member went into the washroom either before or after he spoke to her to look in the toilet, [the Client] responded, "No". Later, she clarified that she did not remember.

In response to questions asked in cross-examination regarding details around the bladder scan, [the Client] responded several times with expressions of, "I assume", "[the Member] would have," "I would have," or "I must have". When Ms. McIntyre suggested that [the Client] may be reconstructing details that she could not actually remember, [the Client] denied doing so. However, when Ms. McIntyre pressed [the Client] to admit that she could not remember the details from three years ago, [the Client] responded, "No I can't remember the kind of detail that doesn't involve being touched inappropriately, no."

Initially, [the Client] described the scan as follows, "And then the wand or the...scanning device, and, well, I guess took a scan and said that my bladder was full, and he said he would have to do an in-and-out catheter to drain my bladder, and that he would have to teach me how to do that to myself. And I didn't think anything of that because my [relative] had a hysterectomy years and years ago and told me this horror story about how she had to catheterize herself, and honestly, I wasn't even too sure if it was true or not true because I had never heard of that before. So when he said that, I thought, okay, I guess you do have to do that."

During cross-examination, [the Client] denied that she told the Member that she could not do self-catheterization because she was in too much pain. [The Client] denied being told by anyone that the doctor had ordered self-catheterization (although such an order does appear in [the Client]’s chart). [The Client] identified in her earlier evidence that she considered it a "horror story" when her [relative] had related her experience about self-catheterization. [The Client] agreed in cross-examination that she could "not imagine having to catheterize myself." [The Client] denied that self-catheterization was ever mentioned to her again. The panel heard evidence that an order to teach [clients] self-catheterization was quite common.

There were some aspects of [the Client]’s testimony concerning the bladder scan and events surrounding it that the panel found especially troubling.

1. There was an issue during the hearing about where the Member placed the wand during the bladder scan, and where he ought to have placed it. [The Client] does not appear to have raised this issue at all with anyone at the Facility during its initial investigation. The details involving the placement of the bladder scan wand were also not described during [the Client]’s evidence in chief. It was during cross-examination that [the Client] first testified that she recalled the Member had placed the wand on her pubic bone.

When Ms. McIntyre challenged [the Client] on her recollection of the placement of the wand, suggesting that [the Client] could not be correct because the scanner cannot scan through bone, [the Client] responded, "I am correct on that. I don't know how the bladder scan works, but I know that's where he had the wand." Ms. McIntyre probed again, asking, "So that's what your memory now tells you?" and [the Client] responded, "Yes". Then Ms. McIntyre asked her, "And you can't admit that maybe you are wrong?" to which [the Client] replied "No". However, [the Client] contradicted herself on this point, when earlier in her cross-examination she described the placement of the wand as "it was just kind of centralized between my incision and my pubic bone. Like, below my incision". On this point, the panel notes that [RN B] and the expert witnesses on nursing standards all agreed that placement of the wand over the pubic bone would obstruct the scan of the bladder. The Member could not have had the wand positioned over the pubic bone and still have achieved a diagnostic result.

2. When asked whether or not there was a measuring device (commonly referred to as a “hat”) in the washroom to measure urine output, [the Client] stated "No there was not". She expressed no doubt about this and was very firm. However, it is clear to the panel that [the Client] is incorrect on this point. Both the Member and the nurse who followed him on the day shift ([RN B]) testified there was a hat in the toilet. [RN B] said that [the] hat was already in the toilet when her shift began (and the Member’s shift ended). Both the Member and [RN B] charted [the Client]’s urine output, which they only could have done if there was a measuring device such as the hat in the toilet. This evidence conflicts completely with the very firm recollection of [the Client] that there was no "hat" in the washroom.

While perhaps not a lot turns on whether or not there was a "hat" used to measure urinary output in the toilet, the inability of [the Client] to remember this item which is routinely used and in fact was repeatedly used by her during her hospitalization is in sharp contrast to her absolute and certain response of "No, there was not". Her evidence on this point is contradicted by the chart and the testimony of both the Member and [RN B]. It would be one thing for [the Client] to forget the hat was there. But for her to firmly deny it was concerning to the panel.

[The Client] recalls that after the bladder scan, the Member then left the room, telling her to "keep pressing the pain pump." He returned a short time later with the catheterization equipment.

(c) The Catheterization

The essence of this allegation against the Member is that during the catheterization, after the tube had been inserted, [the Client] says she felt the Member’s fingers moving up one side of her vagina, over her clitoris and back over the other side of her vagina. This continued a number of times, but she could not recall how many times it happened.

In terms of the details of the catheterization, [the Client] says the Member did not tell her anything about how he was going to do the catheterization. When asked what he did to clean or prepare her for the procedure, [the Client] replied, "I don't really remember". When asked if she remembered whether or not the Member cleaned her genital area, she replied, "I don't think he did, but it wasn't something I was really paying...I wasn't really paying attention to the procedures that he was doing."

[The Client] stated that during the catheterization she was laying down flat and that she couldn't see past her belly because it was bloated. When asked if there was anything about the insertion of the catheter that bothered her, [the Client] replied, "No."

[The Client] stated that after the catheter was inserted, "I could feel his fingers moving up one side of my vagina and over my clitoris and back down the other side of my vagina. And he continued to ... he continued back up the other side of my vagina and across my clitoris and back down a number of times."

[The Client] was asked what she referred to when she used the word "vagina", and she replied "everything except the anus". She highlighted the area on a diagram [ ].

[The Client] admitted that she did not know which hand the Member allegedly used and she could not tell how many fingers were involved or how many times he made the motion that she described as inappropriate. She could not recall whether it was four times or ten times. [The Client] reported being embarrassed, and unable to respond or say anything. [The Client] demonstrated on an anatomical mannequin the motion that she felt that the Member had used. When she was asked how long the Member touched her genitalia, [the Client] responded that she had no concept of time. “It could have been one or twenty minutes.”

When asked to describe how she felt during the alleged incident, [the Client] stated, "I was kind of in shock. Like, I...like, it's hard to believe that it's happening. And it's embarrassing and disgusting, and I didn't know what to do. I just laid there and stared at the ceiling and felt almost paralysed, you know. I just couldn't do anything. I just lay there."

In cross-examination, Ms. McIntyre asked [the Client] if she recalled the Member using the index finger and thumb of his non-dominant left hand to spread her labia in order to visualize the urethra. [The Client] responded that she did not remember him doing that but conceded he would have to in order to expose the urethra for catheterization. Ms. McIntyre asked, "You are not denying he did it though?" to which [the Client] responded, "Absolutely not. No, I am not denying it."

During cross-examination, Ms. McIntyre further probed the recollection or lack thereof of the details [the Client] provided around the catheterization. [The Client] acknowledged she did not remember the drapes contained in the catheterization tray being applied but she rejected the suggestion that drapes would have minimized how much she was exposed.

[The Client] had no memory of the Member cleansing her vaginal area with a cotton ball dipped in iodine, or that the motion used to cleanse the area required the cotton ball be moved down the left, right and middle of her vaginal area touching the clitoris in the process (a movement similar to the one [the Client] described as the inappropriate, sexually abusive touch). [The Client] admitted that she had no recollection of this process at all and went on to say, "It wasn't something that stood out, because it wasn't something that I felt would be an inappropriate touch. I know he is between my legs. I know he has to touch my vagina to clean it, drape it, insert a tube, drain... I know he has to touch me, I am not denying he didn't touch me, but I am saying after the tube, he continued to touch me in a manner that was not appropriate.”

At one point Ms. McIntyre posed the question, "So when you were touched and you felt touch, you assumed it was [the Member’s] fingers, correct.” [The Client] responded, "No". When Ms. McIntyre requested clarification, [the Client] responded, "No, I don't remember that". Ms. McIntyre asked, "You didn't actually see that it was [the Member’s] fingers that were touching you, did you?” [The Client] acknowledged this, saying, "No, I did not." Ms. McIntyre pressed on, "So you interpreted what you felt as being his fingers?” [The Client] responded, "Yes that is correct".

Ms. McIntyre put it to [the Client] that during the catheterization, the Member touched [the Client] with cotton balls dipped in iodine, and asked if [the Client] remembered that. [The Client] replied that she did not remember but conceded that she could not deny that the Member did that. [The Client] went on to say that although she thought she would be able to tell the difference between fingers and a cotton ball dipped in iodine, she could not swear "for certainty that I would know the difference."

Ms. McIntyre asked if [the Client] saw the catheter go in her urethra and [the Client] replied that she did not. Ms. McIntyre asked how [the Client] could know when it was inserted and [the Client] responded that she could recall feeling it. Ms. McIntyre asked [the Client] if she could remember feeling the catheter slip back out and [the Client] replied that she could not remember that. Ms McIntyre then said, "What I put to you is the touching you explained yesterday to the Committee was actually the touching that [the Member] did and was required to do in the process of cleaning your vaginal area for catheterization." [The Client] responded saying "And I would say that you are 100 percent wrong."

[The Client] testified that the inappropriate touching stopped when the container collecting the urine from the catheter was about to overflow. [The Client] stated that she didn't know if the container did overflow but it was filling up and the Member had to tend to that, to find something else to drain the rest of her bladder, so he left her bedside and returned with another receptacle and a cup and he bailed the urine from one receptacle to another. Logically if the urine had overflowed, the bed would need changing or she would have had to lie in a wet bed. This is possibly another fact which [the Client] was unable to remember.

[The Client] stated that when the catheter was removed, she then began to cry quietly and the Member apologized three times, saying he didn't mean to hurt her.

[The Client] did not observe any evidence of sexual arousal in the Member while he was catheterizing her. [The Client] recognized that it was necessary for the Member to look at her vaginal area during the procedure and stated she was not surprised by that, but went on without further question to state, "but what I was surprised by and disgusted by and humiliated by was the way he was fondling my vagina while my bladder was draining".

In cross-examination, Ms. McIntyre asked [the Client] if the Member cleaned her vaginal area when the catheterization was complete. [The Client] stated that she could not remember. Ms. McIntyre queried, "But at this point, you were paying close attention to what he was doing, I assume, right?” [The Client] responded that once the catheter was removed, all she could recall was crying. Ms. McIntyre put to [the Client] that her emotional state was such that it interfered with her ability to remember what happened. [The Client] responded, "Yes".

[The Client] testified that she stopped drinking fluids through the night so that she would not require another catheterization. She said she pretended to sleep for the rest of the shift so as to avoid interacting with the Member. [The Client] denied requesting an additional bladder scan from the Member in the morning.

[The Client] testified that all night long she kept running the details of her encounter with the Member through her mind. She related that she could see fine, hear fine, move fine and talk fine. She also stated that emotionally she was lost, and didn’t know what to do.

[The Client] denied during cross-examination any recollection of the Member providing her with a glycerine suppository around 0600 hours on the morning of December 9, 2009. [The Client]'s testimony conflicts with the testimony of the Member on both the suppository and the request for a second scan. The chart verifies that the suppository was ordered.

Ms. McIntyre tested other details of the evidence in chief [the Client] provided the previous day. For example, [the Client] had stated that following the catheterization procedure, the Member raised the head of her bed, however in cross-examination [the Client] admitted that she did not know whether she raised the bed or if the Member did.

(d) The Care Given by [RN B]

The following morning, December 9, 2009, another nurse ([RN B]) took over care for [the Client] starting at 0700 hours. [RN B] has been registered with the College as an RN since 1990. [RN B] has been working at the Facility since September 1990. She initially worked on a surgical unit for a year and a half before moving to the Unit where these events unfolded. [RN B] is currently working fulltime and that was the case in December 2009. She worked both day and night shifts and at the time of the incident was the charge nurse 90% of the time when she was on night shift. She is a very experienced nurse. She reported catheterization being one of the most common procedures on this Unit.

[The Client] testified that she considered [RN B] as “a breath of fresh air.” [The Client] stated that [RN B] offered her a pair of mesh panties, and a fresh maxi-pad. [The Client] testified that [RN B] took her to a shower room down the hall and assisted her with a shower which [the Client] specifically recalled as being “great”.

During cross-examination, [the Client] acknowledged she has no memory of a shower stall in her room. She stated that [RN B] took her out of her room to another area on the ward where [clients] shower. [The Client] was shown a diagram of her room. The diagram demonstrated that there was both a toilet and a shower stall in her room. [The Client] confirmed that she spent a considerable amount of time on the toilet trying to void. However, despite being able to look directly into the shower from the toilet, [the Client] questioned the accuracy of the diagram. As of the date of her testimony, she apparently still has no recollection of a shower being in the room. The accuracy of the diagram was not disputed by either counsel. [The Client] did ultimately acknowledge that it was possible that a shower stall was located in her room and that she simply could not remember it being there.

More troubling for the panel is [the Client]’s clear recollection of the shower she says she had. [RN B] testified that on the morning of December 9, 2009, she assisted [the Client] to the sink in her room and helped her to wash. [RN B] denied that she assisted [the Client] with a shower, stating, "She had a big large incision over her suprapubic area, and we are not to shower people with incisions". [RN B] testified that her recollection of not showering [the Client] is confirmed by the charting [ ], with the entry she recorded at 1130 hours on the morning of December 9, 2009.

Not remembering a shower stall in your room speaks to a memory deficit that might be explainable by the passage of time. Recalling exiting the room and going to a shower somewhere else on the ward and being assisted with that shower by a nurse, when this did not actually occur, is more concerning. While [the Client] obviously believes that what she is saying is true, the panel cannot rely on the accuracy or veracity of her memory or her testimony. If [the Client] believes she took a shower that she did not take, it casts doubt on [the Client]’s ability to accurately recall events. This is one of the factors that leads the panel to conclude that [the Client]’s allegations against the Member are more likely to be a misremembered and misinterpreted sequence of events.

[The Client]’s recollection of events was challenged in other ways. According to her testimony, after [RN B] gave [the Client] mesh underwear and helped her to shower, [RN B] then performed a bladder scan followed by a catheterization. [The Client] said that when [RN B] came in with the scanner, [the Client] was laying down in bed and she went to push the covers down. [RN B] told her, “No, you don’t need to do that”. [The Client] said this surprised her because she was thinking that’s what she had to do before, with the Member and the bladder scan he had performed.

[The Client] stated that for the bladder scan [RN B] performed, her gown was pulled up, below her breasts, exposing her abdomen and that gel was put on, and that her bladder was checked with no need to pull the covers down below her pubic area. She said this scan indicated that [the Client] needed another in/out catheterization.

[The Client] testified that as a result of the bladder scan, [RN B] performed an in and out catheterization. [RN B] didn’t touch [the Client]’s vagina after insertion of the tube. [The Client] described how she compared the techniques employed by both of the nurses who had performed a bladder scan and catheterization on her. [The Client] described this comparison as running through her mind while [RN B] performed the catheterization. She mentally noted the differences in the care of the two nurses. [The Client] recalled that the urine tray was overflowing, or was filling up, and that when [RN B] finished draining the bladder and pulled out the catheter, [the Client] “burst” and reported to her that the nurse who had been on shift before [RN B] had touched her inappropriately. [The Client] testified that she hadn’t disclosed anything to [RN B] earlier because she wasn’t sure if she could report it.

There are some significant ways in which [the Client]’s recollection of the care given to her by [RN B] differs from the evidence of [RN B] and the charts. [RN B] testified that she did not start her first interaction with [the Client] by giving her mesh underwear and a shower. Rather, [RN B] says she performed her initial assessment of [the Client] between 0700 and 0800 hours. This assessment included measuring [the Client]’s urinary output by using the “hat” in the toilet in [the Client’s] washroom (the same hat that [the Client] says was not there). The output was measured between 0700 hours and 0800 hours, and [RN B] said she did her first bladder scan on [the Client] within 20 minutes to determine urinary retention. When asked, “On this first bladder scan, as you prepared, in the way you have just described, did [the Client] push the covers down further and did you tell her she didn't need to do that?” [RN B] replied, “No, she did not.”

[RN B] testified that there was nothing unusual when she performed the first bladder scan and [the Client] said nothing to her regarding the Member. [RN B] testified that because the residual urine was less than 200 cc's, which is within acceptable range, there was no catheterization done following the bladder scan [RN B] did between 0700 and 0800 hours. [RN B]’s evidence was supported by her charting entries.

[RN B] testified that after this first bladder scan, she helped [the Client] wash in the sink. She then gave her mesh underwear and a sanitary pad. [RN B] recalled explaining to [the Client] that now that she was up and around in the daytime, [clients] often experienced more vaginal bleeding. She explained that on night shift it is not a big issue as the [client] is usually lying down. [The Client] did not complain to [RN B] at this point about the Member not providing [the Client] with mesh pants, and there was no indication at this point that [the Client] was upset.

[RN B] testified that between 1000 and 1100 hours, at some point following the first bladder scan, [RN B] changed the sheets on [the Client]’s bed while [the Client] sat in a chair and talked about some of her concerns. [The Client] was worried about her [child] getting on the school bus. She was worried about the surgery, and whether both ovaries had been removed and whether she would go into menopause at [a young age]. She was worried that she was having trouble voiding urine and that she might be sent home having to do self-catheterizations. [RN B] recalled that [the Client] had tears welling in her eyes at this point, but was not actually crying. This did not strike [RN B] as unusual, since in her experience many hysterectomy [clients] are teary post-operatively. [The Client] did not recall this conversation with [RN B], but in cross-examination she did not deny it had occurred and agreed it was possible that she had voiced these concerns and was teary-eyed.

Later that shift, between 1200 and 1230 hours, [RN B] measured [the Client]’s urine output again. Following that measurement, she performed a second bladder scan. There was nothing unusual about the bladder scan, and [RN B] denied that [the Client] pushed the covers down and that [RN B] said, “No, you don’t need to” in response.

This second bladder scan showed more than 700 cc’s of retained urine, and so an in and out catheterization was necessary. Once the catheterization was complete and [RN B] was cleaning up, [the Client] began to cry.

If [RN B] is to be believed, then that means [the Client] has forgotten some events (the first bladder scan, the conversation while [RN B] changed her sheets), has imagined others (the shower, being told by [RN B] that she didn’t need to pull her sheets down for a bladder scan) and mixed up the timing and sequence of other events. That she would mix up the timing and sequence of events is not implausible, because [the Client] testified many times that she was unsure of time. However, it seems improbable that [the Client] would not know that she did not have a catheterization after the first bladder scan [RN B] did. The first scan is charted so the only logical explanation is that [the Client] has either forgotten that event or she was confused and merged it with a subsequent procedure. In either case, it is yet another fact that casts doubt on [the Client]’s reliability.

(e) [The Client]’s Report to [RN B]

There was also a dispute about what [the Client] actually said to [RN B] when [the Client] reported her concerns about the Member to [RN B] following the catheterization on the afternoon of December 9, 2009.

[The Client] related the catheterization procedure and the conversation with [RN B] as follows: "I was laying down and the covers were pulled down and I had to spread my legs. She inserted the tube and she didn't touch my vagina following the insertion of the tube. At some point she also had to ... the tray was overflowing as well and... I don't know if it overflowed, but it was filling up, and when she finished draining my bladder, she pulled out the catheter and I started to cry, but it was like...like, I burst and I said to her, "There's something that I have to tell you.” And I said, “The nurse that was on before you touched me inappropriately.” And I was talking very fast and I was crying and I said, “Why did he do that? He didn't give me underwear. He didn't...He pulled the sheets down below my knees? Why did he do that?” And I was just crying and she said to me...when I said that he had touched me inappropriately she said...she looked at me and she said, “What do you mean?” And I said, “He touched my clitoris area."”

The issue of the mesh underwear formed a significant part of [the Client]'s complaint against the Member. It appears to be the catalyst that started her thinking about the differences in care between the Member and [RN B]. During cross-examination, [the Client] acknowledged that [Nurse A], the nurse who provided her care on day shift when she first arrived on the Unit from recovery, did not provide her with mesh panties, even though [the Client] was getting up to toilet. [The Client] acknowledged that she was not concerned that [Nurse A] did not give her panties. It struck the panel as strange that [the Client] would draw such sinister conclusions from the Member’s failure to give her mesh underwear on the night shift, yet she has no complaints about not being provided mesh underwear by the day nurse that the Member took over from.

During cross-examination, [the Client] admitted that when she reported the alleged incident to [RN B], she did not include the detail about the Member apologizing three times. [The Client] also admitted that she did not report the itchiness and the alleged lifting of the gown to [RN B] either. [The Client] stated, "What I gave her was a burst of emotion and thoughts that were coming to my mind at that particular time. I was very emotionally upset at the time." She described her outburst as sobbing and “in my mind I was hysterical.” [The Client] stated that following the conversation, [RN B] just left the room and no one came back to see her. She described sitting up in bed crying with the curtain surrounding the bed. She describes seeing [RN B]'s feet as she left the room and stated that [RN B] did not come back.

In her testimony, [RN B] absolutely denied that [the Client] used the words "inappropriately touched". She did not perceive [the Client] to be sobbing or hysterical when she relayed her concerns about the Member. She was upset and crying, and on a scale of 1 to 5, she would describe [the Client] as a 2 (with 5 being the most upset). [RN B] believed their conversation about the Member lasted 3 to 5 minutes, and while [the Client] was crying, she was speaking in a normal tone and at a normal volume. [The Client] seemed to be coherent and able to articulate what she wanted to say.

From the conversation that [RN B] had with [the Client], [RN B] believed that [the Client] was uncomfortable having a male nurse which in her opinion is quite common for gynecological [clients]. [RN B] was not alarmed by anything that [the Client] disclosed to her. She understood the specifics of [the Client]’s concern to involve three complaints. First, there was a complaint that [ ] the Member had not given [the Client] mesh pants. [RN B] explained she was not concerned about that. There was no policy at the Facility about mesh pants, and they are more important during the day as opposed to the night since the [client] is up and moving about more during the day.

Second, [RN B] recalled that [the Client] complained that the Member pulled the covers down too far and “flopped” her legs open. [RN B] specifically recalled that [the Client] used the word "flopped" because [RN B] thought it was an unusual way to describe things, as [the Client] would have had complete control of her legs.

Third, [RN B] recalled that [the Client] complained that the Member might have had contact with [the Client]’s clitoris during the catheterization. [RN B] was not concerned that the Member may have had contact with [the Client]’s clitoris during catheterization, as there is a proximity of the urethra to the clitoris, there can be difficulty visualizing the urinary meatus, the area can be slippery, the labia is held open by the fingers, and there is always the potential to touch the clitoris during cleansing. [RN B] testified [the Client] never used the word “inappropriate” with regards to the touching. [RN B] testified that she did not think anything was wrong when [the Client] said the Member had touched her. [RN B] said, “I thought that she was not comfortable having a male as a nurse, not comfortable with his care.”

[RN B] stated that by the end of the conversation, [the Client] had “settled” and was teary but not actually crying. [RN B] asked [the Client] if she wished to speak to the Charge Nurse. [The Client] said no.

[RN B] reported [the Client]’s concerns to the Charge Nurse at about 1500 hours. She reported them as she had understood them: that they were concerns about the quality of care [the Client] had received from the Member, and not as concerns about sexual or other abuse. The Charge Nurse checked that the Member would not be providing care to [the Client] that night.

Following [the Client]’s disclosure to [RN B], there were further interactions between them. [The Client] did not recall the time but on the first post-disclosure occasion, she testified that [RN B] was just performing her regular rounds and nothing was mentioned about their previous conversation regarding the Member. [The Client] did not raise the subject either.

There was a second interaction that [the Client] recalled. She was uncertain of the time, but said that at some point she was feeling nauseous and had vomited a bit. [RN B] gave her some Gravol and was just leaving the room when [the Client] asked her what was happening. [The Client] stated that [RN B] asked, "What do you mean?" [The Client] replied, "Is he coming back?” [The Client] said that [RN B] said, "No" and while [the Client] forgets the exact terminology used, she believed the gist was that the Member had been reassigned. [The Client] stated that she asked [RN B], "Does he even know?” and in turn [RN B] asked "Do you want him to know?" [The Client] says she replied, "Of course I do." [The Client] related that she got upset again and [RN B] asked her again if she would like to speak to the Charge Nurse. [The Client] testified that she said, "No, I want to be left alone." [The Client] said, "I felt like I was a laughing stock. I felt like everybody knew and they were all having a good laugh about it." [The Client] went on to report that, "All I thought was everybody knew and nobody cared. I was not able to control my emotions at that time. I was a mess. Clearly I was emotionally distraught and no one came to help me.”

[The Client] confirmed that her doctor came to see her after she had made her report about the Member to [RN B]. [The Client] said nothing to the doctor about the Member. She stated "He's a great doctor, but I thought he must have known, and he didn't bring it up, so I didn't bring it up."

In the panel’s view, this evidence speaks more to the state of mind of [the Client], rather than to the facts. [The Client] believed that the staff – including [RN B], the Charge Nurse, and her doctor – knew that [the Client] had complained of sexual abuse by a nurse, and were all laughing about it and didn’t care. This suggests that [the Client] was experiencing a certain level of paranoia and irrationality.

[The Client]’s evidence about these further interactions with [RN B] is contradicted by [RN B] and by the chart. For example, the conversation about whether the Member was coming back could not have happened at the same time [RN B] gave [the Client] the Gravol. The chart indicates that the Gravol was given to [the Client] at 1330, which was before [RN B] had spoken to the Charge Nurse and knew that the Member was not assigned to [the Client]’s care for the night shift.

[RN B] testified that she continued to see [the Client] at least every hour following [the Client]’s initial disclosure, and that (contrary to [the Client]’s recollection) [the Client] did not appear upset. At 1600 hours, [RN B] gave [the Client] her medication and they had a conversation about the Member. [RN B] told [the Client] that the Member would not be her nurse that night, that the nurse assigned to [the Client] was a woman named [Nurse C] who was a great nurse. [The Client] asked [RN B] words to the effect of, “Will he know why he’s not assigned to me?” [RN B] said she told [the Client] that the Charge Nurse would speak to the Member when he arrived and let him know that [the Client] had not been happy with the Member’s care. According to [RN B], [the Client] seemed content with that explanation. [RN B] offered again for the Charge Nurse to come speak to [the Client], but [the Client] declined. [RN B] recalled that [the Client] was not crying during this conversation.

[RN B] said she did not realize until later the next day (December 10, 2009) that [the Client] was alleging that the Member had sexually assaulted her.

In resolving the factual discrepancies between [the Client]’s evidence and [RN B]’s evidence, the panel prefers the evidence of [RN B]. [RN B] had herself been charged with professional misconduct by the College relating to this incident, and had resolved those charges by pleading to some of them and entering into an Agreed Statement of Fact. In that Agreed Statement of Fact, [ ] [RN B] indicated (and the College apparently accepted) that if [RN B] were to testify, she would say that she did not appreciate that [the Client]’s complaint was one of sexual abuse, but rather interpreted [the Client] complaining about the manner by which the Member performed the procedure as compared to the manner by which [RN B] performed the same procedure. As such, while [RN B] did take [the Client]’s concerns about the Member seriously, she did not fully appreciate the sexual nature of [the Client]’s complaint. [RN B] also acknowledged that she ought to have taken immediate steps to elicit further information from [the Client] to clarify the nature of her concerns, and ought to have confirmed whether [the Client] was making a report of sexual abuse or a complaint regarding quality of care. Had she done so, it would have been apparent that [the Client] was alleging that she had been subjected to sexual abuse by the Member. [RN B] accepted that her actions constituted professional misconduct.

[RN B] had nothing to gain in this proceeding by minimizing or denying her actions, many of which were charted at the relevant time. She had already made admissions of professional misconduct before this College. She had accepted and completed a disciplinary program imposed by the Facility. She was clearly remorseful about the incident. She was not trying to be unfair to [the Client] in her evidence. However, as explained throughout these reasons, her evidence does cast significant doubt on the reliability of [the Client]’s testimony.

(f) The Report to [the Social Worker]

[The Client] testified that she did not see the Member when he worked the night shift on the night of December 9-10, 2009. She stated that she knew he was in the hospital and she was afraid. [The Client]’s nurse that night was [Nurse C]. [The Client] said nothing about the Member to [Nurse C], and [Nurse C] noted nothing unusual about [the Client]’s demeanour or appearance. The night shift was uneventful.

[The Client] had a conversation with a close friend of hers on the morning of December 10. [The Client]’s friend was also a staff member at the Facility. [The Client] told her friend that she has been sexually assaulted, and the friend advised [the Client] to ask to speak to the Facility’s social worker. [The Client] did this. Both [the Client] and the social worker [ ] testified about their conversations.

There is no doubt that [the Client] told [the social worker] in clear language that she had been sexually assaulted by the Member. However, the details of what [the Client] reported are in dispute.

[The Client] stated that [the social worker] sat on her bed and enquired about what she could do for her. [The Client] stated, "I just kind of burst into tears and, you know, told her that [the Member] had touched me inappropriately." She said she was crying and very upset. This was confirmed by [the social worker], who testified that [the Client] was emotionally distraught.

[The Client] stated that [the social worker] had reviewed the chart prior to coming into her room but had no idea what had happened because nothing was mentioned in the chart. [The Client] stated that [the social worker] told her she had to leave to contact people and would come right back. [The Client] believes she spoke to [the social worker] on December 10th and 11th for perhaps a total of four times.

[The Client] stated that [the social worker] informed her that a report would be made to the College (which it was).

[The social worker] did not take notes of her first meeting with [the Client]. However, later that day there was a second meeting with [the Client]. The Nurse Manager of the Facility [ ] also attended. During that meeting, [the social worker] took “scratch notes” by hand and showed them to [the Client] as she was making them to ensure the accuracy of those notes. The notes were meant to reflect what [the Client] told [the social worker] at both the first and second meeting on December 10. [The social worker] then transferred these rough notes to a handwritten report for [the Client]’s chart. There was also a typed version prepared. The original scratch notes were destroyed apparently for privacy purposes. However, both the handwritten chart entry and the typed chart entry were admitted into evidence.

[The social worker] testified that phrases in her report marked with quotations denote exactly what [the Client] reported to her. [The social worker] read from the chart a section she had marked in quotes that states [the Client] told [the social worker] that during the catheterization by the Member, "One hand stayed on my vagina, near the clitoris. His fingers were moving, almost like massaging. He kept his hand there the whole time." [The social worker] also quoted [the Client] as saying in reference to whether other nurses touched her vagina while performing a catheterization that, "They had to sometimes hold the tube, but not the way he did." [The social worker] also identified in quotes that [the Client] said, “As soon as another nurse did the catheter I knew it was wrong." Her notes also quoted [the Client] as saying "Why didn't he give me underwear? The first thing [RN B] did was give me underwear?”

During cross-examination, Ms. McIntyre took [the Client] to the notes taken by [the social worker]. [The Client] confirmed she had the opportunity to review these notes prior to the hearing. The notes made by [the social worker] stated that [the Client] told her, "After he put the catheter in, one hand stayed on my vagina, near the clitoris. His fingers were moving, almost like massaging. He kept his hand there the whole time.” [The Client] testified that she agreed that she may have said “almost like massaging” but she disagreed with the part of the statement about one hand staying on her vagina for the whole time. [The Client] went on to say, "The reason I would have said almost like massaging, is because I have had a very difficult time finding what type of verb to use to describe a disgusting feeling motion." [The social worker]'s notes recorded that that [the Client] told her, "other nurses never touched my vagina". [The Client] denied saying this to [the social worker]. [The Client] said that she had two other in and out catheterizations "which would have required touching my vagina”.

Ms. McIntyre continued to review the notes made by [the social worker]. Ms. McIntyre asked if [the Client] recalled telling [the social worker], "As soon as another nurse did the catheter [the next day], I knew it was wrong." [The Client] replied, "I told her that....those may not be my exact words, but I did tell her that I was re-living what he was doing to me, while I was having the other catheterization done and in doing so, when she completed her catheterization, it solidified 100 percent in my mind that what I was thinking was inappropriate was definitely inappropriate."

Ms. McIntyre pressed [the Client] to acknowledge that, "the next day, the 10th, is when you knew that the way [the Member] did the catheterization was wrong?" [The Client] replied, "No, I knew that I was correct when I knew...when I was laying there thinking, what is this man doing? Why is he doing that? I knew what he was doing was wrong. I knew it was inappropriate. I knew that. When I had the catheter done the next day by [RN B], it confirmed that what I knew, in my mind was wrong, it confirmed I was right."

Ms. McIntyre put to [the Client] once again that [the Client] had told [the social worker], "that as soon as the other nurse did the catheter, I knew it was wrong". Ms. McIntyre asked "did you say that to her or did you not say that to her?" [The Client] responded, "not those specific words." Ms. McIntyre noted that in her report, [the social worker] put those words in quotes. [The Client] replied that she couldn't say why [the social worker] had put the words in quotes in her report. Once again Ms. McIntyre asked if [the Client] said, "that as soon as the other nurse did the catheter, I knew it was wrong" and [the Client] replied, "I didn't".

Ms McIntyre put to [the Client] that [the social worker]'s report says that [the Client] told [the social worker] that the Member massaged [the Client]’s clitoris when he was inserting the catheter. [The Client] denied that she reported that to [the social worker]. Ms. McIntyre stated that [the social worker] reported that [the Client] had told her that the male nurse had exposed her too much compared to the other nurses when doing a bladder scan. [The Client] replied, "I did not use those words. I did tell her that he exposed my...he pulled the covers down and asked me to spread my legs, and the other nurses did not."

Ms. McIntyre asked [the Client], "And you can remember exactly what you said three years ago?” [The Client] responded, "I would not have told her... and I did not tell her, other nurses did not touch my vagina. Clearly, I had two other in and out catheterizations done, which would have required touching my vagina."

[The social worker] was very confident in her testimony. Her evidence was verified by her chart entries made in [the Client]’s medical record. She answered all questions asked in a forthright manner and appeared truthful and unwavering. Although she was an experienced social worker, this was her first time dealing with an allegation of sexual assault and she was shocked by the allegations. She testified that she might not have asked all the right questions and that she would not be surprised that [the Client] had not provided all the details of her allegations during their meetings on December 10. [The social worker] also testified that she has training in interviewing, and that interview training is a “major component and requirement of any social work degree.”

The panel believes that [the social worker]’s testimony fairly and honestly represented her best recollection of the events. The panel was satisfied that her evidence was credible. This includes her evidence that when she put words in quotations in her notes, those quotations were meant to represent [the Client]’s exact words. This leads the panel to conclude that there is an inconsistency between [the Client]’s claim that she was crying when the Member finished catheterizing her because she knew right away the Member had been touching her inappropriately, and her statement to [the social worker] that she realized the Member had touched her inappropriately when she compared the nursing care of [RN B] with that of the Member.

(g) Further Reports and Statements by [the Client]

[The social worker] reported [the Client]’s complaint to the Facility’s Nurse Manager. [The nurse manager] participated in meetings with [the Client] on December 10 and 11, 2009. This was the first time [the nurse manager] had been involved in a sexual abuse investigation.

[The nurse manager] recalled that during their meeting on December 10, [the Client] “described that she had had surgery on the 8th and had had a catheterization performed by a male nurse during the night shift, and that her experience had been that there had been touching that she felt was inappropriate.” More specifically about the catheterization, [the nurse manager] stated that [the Client] “described that there was touching of her vagina and clitoris and that she did not want him to take care of her again, and that she had advised [RN B] on the day shift of the 9th that she did not want him to take care of her.”

[The nurse manager] testified that [the Client] “reported that since [the Member] had done the catheterization, she had had other nurses do it and that it… another nurse didn’t do it the same way, did not pull the sheets down to her knees. That was another thing she felt uncomfortable about.” When [the nurse manager] was questioned further, she said that [the Client] was referring to a bladder scan that was done during the night shift of December 8. [The nurse manager] said that [the Client] reported that she couldn’t pee the evening of her surgery. [The Client] reported this to her nurse, who repeatedly instructed [the Client] to push her pain pump. After some time, the male nurse performed a bladder scan. [The Client] reported that the nurse pulled the covers down to her knees and opened her legs. [The nurse manager] didn’t ask clarifying questions as [the Client] was very upset. [The nurse manager] left [the Client] with [the social worker] after the meeting, which lasted 15 to 20 minutes.

Although [the Client] was not aware of the male nurse’s name, [the nurse manager] was aware that [the Client] was referring to the Member as she had checked the nursing assignment.

[The nurse manager] reviewed her notes of the meeting, which were admitted into evidence. [The nurse manager] was confident that what she wrote in quotes were [the Client]’s own words. [The nurse manager] had the following words in quotes: “urge to go pee”, “keep pushing the pain pump”, “open her legs”, my clitoris was being massaged”, “I was not comfortable but I did not know what to do”.

[The nurse manager] did not go back to see [the Client] that day but arranged for her to be moved to a private room for more privacy. In her evidence, [the Client] recalled being moved by [the nurse manager] to a private room. [The Client] said she did not want to be transferred to a private room because she did not want to feel isolated and she liked her roommate.

On December 11, 2009, [the nurse manager] went with two other staff members to see [the Client] again. At this point, [the Client] did not want to talk about the events any more.

[The Client] stated that no one at the Facility advised her that she should write out notes of everything she could remember of the alleged incident. No one at the Facility took her through the events with the same amount of detail as in this hearing.

[The Client] was discharged from the Facility on December 11, 2009. She stated that she was not doing well emotionally on the day she was discharged. She testified that she was a mess and she had so much to think about with her family and what was going to happen and people finding out.

[The Client] stated that some time following her discharge from the [Facility], she received a call from [the nurse manager] stating that the Member would not be returning to work until the College completed its investigation. But later she received a call from [an Investigator] at the College, and [the Investigator] advised her that the Member was back at work.

[The Client] stated she called the Facility to verify that the Member had returned. She stated the Facility would not give her any more information, citing privacy reasons. [The Client] stated she became very upset and distraught and said, "What do I have to do? I'm the one that is living with this and I don't know what's happening and he's still treating [clients]....Do I have to make a criminal...charge him criminally? Do I have to take a civil suit? What do I have to do to find out what is happening?"

[The Client] did end up reporting the incident to the police. [The Client] stated that, "Unfortunately, the police did not lay charges and the Crown told me that they wouldn't be able to prove beyond a reasonable doubt that he intentionally sexually assaulted me, so they would not proceed." [The Client] reported she then spoke to a criminal lawyer as a civilian, to explore the option of going before a Justice of the Peace to try to charge the Member criminally. She stated the lawyer told her he would take her case but could not guarantee the outcome and advised her she may wish to get a civil lawyer and proceed that way. [The Client] reported that she retained a civil lawyer, met with that civil lawyer once, and by the time of this hearing a Statement of Claim had been served but no other steps had been taken.

When asked what she hoped to achieve by the civil lawsuit, [the Client] stated "I've been fighting and fighting and fighting to make sure that [the Member] can never do this again." [The Client] explained that she thought there would be something on the Member’s record but she said she was told many women do not come forward. [The Client] stated, "He must have done this to someone else. It all seemed too easy and comfortable for him." She explained that no one had come forward. "There was nothing in his records."

[The Client] stated that she knew the Facility had reported the allegation to the College, but in order to have the rights of a complainant in these proceedings she understood that she would have to make a complaint herself. Subsequent to learning this, [the Client] wrote two letters to the College, the first dated April 29, 2010 [ ] and the second dated May 25th, 2010 [ ]. These letters related to her complaints about [RN B], the Charge Nurse, and the Member. She filed them on the advice of the investigator so that she could be a complainant in the proceedings, which gives her certain rights.

(h) Findings on [the Client]’s Credibility

The panel believes that it is more probable than not that at the time of the alleged event on the night of December 8-9, [the Client] was not convinced that something "inappropriate” had happened. Rather, as she reviewed the nursing care of the Member over and over again in her mind's eye and compared it to that of [RN B] and subsequent nurses, she interpreted gestures, misremembered the sequence of events and possibly subconsciously filled in missing details to complete a memory she now believes to be true. It appears to the panel that [the Client], likely unconsciously, built details in her mind retroactively after convincing herself that something "inappropriate" had happened. The panel is of the opinion that [the Client] absolutely believes she was assaulted, however, the panel is equally as convinced that she was not.

The panel heard from two expert witnesses, one in the field of anesthesiology, and the other in pharmacy. The panel was not swayed in one direction or the other by the testimony of these witnesses. The evidence of the pharmacology expert tendered by the Member was not helpful. It consisted mostly of reviewing published reports of adverse reactions to drugs that were different than the drugs given to [the Client]. Many of those published reports were little more than individual anecdotes with little to any substance.

The panel is cognizant that many drugs, if not all, can have an adverse effect on any given [client], and some reactions are so rare as to be almost unheard of. There was no clear evidence that drugs were responsible for the deficits the panel noted with [the Client]’s memory. All the nurses who cared for her (including the Member) did not see anything that would suggest [the Client] was having a drug reaction. However, a drug reaction would not necessarily be the only explanation for altered perception and/or faulty memory. The panel is also cognizant that a number of other factors can alter a person's perception of reality. Those factors may include stress, anxiety, fear, pain, and mental health issues, to name just a few. Any one of those factors may alter perception and memory. In this particular case, the panel is absolutely convinced that [the Client]'s memories and perceptions have suffered catastrophically. That is demonstrated in the progression of the details as the story is retold, with key allegations against the Member (the gesture to lift her gown above her breasts, the apology made three times) appearing only months later. It is manifest in the many, many details she cannot recall. And it is most obvious in the recollection of a shower that clearly did not occur. The panel does not need to be able to ascribe a specific reason for [the Client]’s faulty memories. The panel simply finds that [the Client]'s memories are inconsistent with and unsupported by other factual evidence.

[The Client] admittedly had no concept of time despite a clock in her room. She was emotionally distraught about her surgery, her children, her [spouse] being away, she was medicated and she was uncomfortable. She remembers a shower she did not have. She does not remember there being a shower stall in her room. She vehemently denies the presence of a "hat" in the toilet despite using it repeatedly. There are so many inconsistencies in the various iterations of her story, and then there is her final version which is practised, polished, and memorized but unrealistic.

The panel is convinced that although we cannot determine whether the memories of [the Client] were affected by anesthetics, pain medications, emotional distress or some combination of all of them, the panel believes that her state of mind or altered emotional state impacted her perception and rationalization. Whatever the underlying reason, it caused [the Client] to mix real events together, to confuse the details of one with another, and to misinterpret gestures and give them calculated and diabolical overtones. She displayed paranoia when she believed everyone knew what had happened – that the Member had sexually assaulted her during a catheterization – and they were all laughing at her rather than taking her complaint seriously. These are not the thoughts of a cogent person.

To believe [the Client]’s version of events, the panel would have to believe that some very experienced and by all accounts exceptional nurses had purposefully and callously turned their backs on the pleas of an extremely vulnerable [client]. The panel asked itself if it was rational or believable that these nurses would think [the Client] was a "laughing stock" or that they were all having a “good laugh” about the alleged sexual assault. The panel does not believe these nurses would have responded in this fashion.

It is clear to the panel that most of the details reported by [the Client] to [the social worker] on December 10, 2009 were real only in the mind of [the Client] and had not been revealed in their entirety to [RN B] on December 9, 2009. The evidence demonstrated that even as late as March 2010, new details of [the Client]’s account were emerging. Despite having reviewed for accuracy at the time the notes that were taken by people she reported the alleged incident to and confirming their accuracy at the time, [the Client] now disputes the contents of many of those notes. She denies direct quotes and adds new explanations to old statements.

There were so many questionable elements to [the Client]’s testimony that it is near impossible to address them all. The evidence as reported by [the Client] is so fraught with inaccuracies, contradictions, assumptions and interpretations that the College could not meet its obligation to prove on a balance of probabilities, using clear, cogent and convincing evidence, that the Member committed an act of professional misconduct. The only person present and able to give first hand evidence against the Member is [the Client] herself. If, as the panel has found, her evidence is far from clear, cogent and convincing, the main case against the Member is unfounded. If the panel cannot with confidence accept the complaint as an accurate reflection of what occurred then essentially the Member’s defence is superfluous.

Evidence of the Member

Despite the panel’s conclusions about the reliability of [the Client]’s evidence, it nevertheless considered the evidence given by the Member.

The panel appreciated that English was not the Member’s first language and took this into account. The panel found the Member to be consistent throughout his testimony. He was confident when answering questions during examination in chief and during cross-examination. He did struggle when asked to elaborate on certain points. The panel understood his testimony despite his struggle with English. The Member was consistent with his description of what he called things, and how he did things. The Member was honest when he couldn’t remember the answer to a specific question. The panel found the Member to be credible in the sense that he was attempting to tell the truth. There were some minor lapses in memory which he filled in by relying on his routine practice in his response to questions related to assessment and care.

The panel considered that the Member is the subject of this proceeding, and as such he does have an obvious interest in the outcome of the hearing. As explained below, the panel found that some of his techniques with respect to catheterization and communication were not perfect. However, on the central issues in the case – the allegations of [the Client] – the panel found the Member to be a credible witness.

(a) Background

The Member started working on the Unit in February 2007, almost three years before these allegations arose. The proportion of females to males on the Unit is 60/40. The Member stated that he had prior experience caring for female [clients] [but not much such experience] prior to 2007.

The Member was first taught how to perform catheterization on both males and females while in nursing school [ ]. He did not have much of a chance to perform catheterization on females prior to working on the Unit.

As part of his hospital orientation at the Facility, catheterization was not part of his orientation. When asked, the Member testified, “I would say that I am very experienced with catheterization and taking care of the female [client].” When asked about the extent of his experience in providing perineal care for female [clients], the Member responded, “I am very experienced with the care of perineal with the [client]because I worked before as a PSW so I would say I am very experienced in that area.”

In terms of caring for female [clients] with an indwelling urinary catheter, the Member testified that he had “good experience” with it. He summarized his understanding of what nursing care would involve in these circumstances, stating that, “Nursing care usually will have the health teachings, begin with it, and try to encourage her to have more fluids in order to prevent any stone formation in there, prevent from infection. We encourage them to mobilize, helping bladder muscle to go back to normal. We make sure that they are aware that the urinary bag should be lower than their bladder when they are mobilizing. And then we also inform them that making sure that the urinary bag will be lower than their bladder and it's also they learn how to do the perineal wash or the care of the catheter itself.” In terms of hands-on care for [clients] with an indwelling catheter, the Member testified, “We do the perineal wash. If the [client] can do herself, if the [client] is able to do their care, we will teach them what is the technique in doing the care with the indwelling catheter. Some of the women aren't able to reach down there, so we do their perineal care also. Some of the [clients] aren't able, quadriplegic or anything like that, we need to do their care for them.” The Member stated that he is comfortable and competent in providing perineal care on female clients.

The Member testified that when working as a nurse on the Unit, he was likely to have at least two [clients] per shift with a catheter, and every shift he would probably have to insert one. By December 2009, the Member testified that he felt “very comfortable” with catheterization and related care. He said that no [clients] had raised any concerns with him regarding his technique in terms of bladder scanning, catheterization or assessing females for vaginal bleeding prior to December 2009.

When asked if he had ever had difficulty in inserting a catheter on a female [client], he replied, “Yes, even if you have really very good experience on inserting urinary catheter, there is still time that you aren't going to get it in the first time. Some of the [clients] are really...the perineal area is swelling or hematoma. There is a lot of factor also that involved in having difficulty in inserting catheter.” If he wasn’t successful the first time in getting the catheterization, he would ask a colleague to help him with the procedure.

The Member stated that prior to caring for [the Client], there was one separate incident when he was caring for a female [client] and the [client] requested to be cared for by a female nurse because of her religion. The Member was not aware of any policies at the Facility in terms of providing personal care to [clients] of the other gender. There is one other full time male nurse on the Unit.

(b) Overview of the Member’s Care – the Charts

The Member was scheduled to work the night shift on December 8-9, 2009. This was not his regular scheduled shift. He had done a trade as a favor for one of his colleagues. His shift went from 1900-0700 hours. He arrived on the Unit at approximately 1830 hrs. He reported that his shift that night was a busy one. The Member only had an opportunity to take one break, “for just a few minutes.” During the Member’s shift, he was assigned six clients.

One of the Member’s clients that night was [the Client]. There was also an elderly [client] who shared [the] room with [the Client] who was also assigned to the Member. The Member was also assigned to [three other rooms]. This shift was a little bit busier compared to other nights. In addition [to] caring for his own [clients], he had to care for other colleagues’ [clients] while they went on their break.

On a typical night shift, the oncoming nurse receives a verbal report from the outgoing nurse; they also could receive a hand-written report on a sheet called the “problem orientated report form” [ ]. After the report is received, narcotics are counted and then the nurses do their initial assessment of their [clients]. If this was his first night with a [client], his assessment would be more detailed because he wouldn’t know that particular [client]’s condition. The first night is a head-to-toe assessment. That assessment can take 10-15 minutes. Also during that initial assessment, documentation is done.

All [clients’] medical reports are kept at the nursing station. There is also a binder for the [client] assessment flow sheet (the “Flow Sheet”), which is put on the door of the [client]’s room. After initial assessments and documentation are completed, which could be approximately at 9:30 p.m., medication rounds are started. Before any medications are administered, the [client]’s chart is reviewed.

The Member’s routine is that he brings the medication cart with him in case one of his [clients] “needs something,” like pain medication. The Member checks his [clients] hourly. If the [client] has a PCA pump running, they are checked every 2 hours, and the [client]’s vital signs are checked every 4 hours. If [clients] are asleep, they are left sleeping. Throughout the night, all medical records are checked to make sure that all of the doctors’ orders are carried out, and nursing care plans are updated. Also, nurses are to determine which [clients] require blood draws/specimen collection in the morning and they also answer [client] call bells. At the end of the shift, blood work is drawn on [clients] that require it. Nurses finish off their documentation. Intake and output is recorded on a sheet entitled “Fluid Balance”.

Medication administration usually falls every six hours, unless it is PRN, which means as required based on the [client]’s condition and the judgment of the nurse.

With regard to [the Client]’s medical record, the doctor’s orders would have been referenced. At the end of the day, a “24 hour chart check” is performed and the nurse signs his or her name to communicate that the orders have been transcribed. All [clients] have pre-op and post-op orders. The post-op orders would have been relevant to how the Member cared for [the Client].

The Member reviewed the doctors’ orders for [the Client] that were in place when he went on shift.

• He identified that PCA stands for “Patient Controlled Analgesia”. [The Client] had a PCA running.
• [The Client]’s doctors’ orders also stated “Foley Catheter out post-op. If unable to void after discontinue use of Foley, teach intermittent self-catheterization rather than indwelling.”
• [The Client] also had an order for a glycerine suppository post-op day number one. The Member testified that a glycerine suppository would help the [Client] expel gas. The charting shows that it was given at 6:00 a.m. on the morning of December 9, toward the end of the Member’s shift. It is a self-administered medication. The Member recalled that he gave [the Client] instructions to put it in her rectal area.
• [The Client] also had a doctor’s order for Famotidine. The Member testified that it was a “histamine H2-receptor antagonist.” It helps neutralize the acid of the stomach and it will also help with the itchiness combined with Benadryl. When [clients] have itchiness, or a reaction to a medication, the body releases histamine. Famotidine is a histamine-2 antagonist. Benadryl is an antihistamine.
• The discharge plan with regard to [the Client] was to be discharged post op day #2 and return to clinic in 6 weeks for staple removal.

The Member was then asked to review [the Client]’s progress records. A resident saw [the Client] at 6:40 a.m. on December 9. The note stated “Good night”. Good night means that the [client] is sleeping well and there are no issues or complaints. The note then said “pain controlled” 0 SOB (shortness of breath) 0 LP (Leg Pain) 0 Nausea and Vomiting and “Foley Out”, “starting to void and vital signs stable.” “Abdomen soft, incision dry. Overall patient is stable, continue present management.”

The resident did not come to the Member to bring any concerns expressed by [the Client]. The next entry was made at 8:15 a.m. on December 9, and the Member would have been gone by that time.

[A] document titled “Vital Signs Flow Sheet” [ ] would have been part of the Flow Sheet kept on the door of [the Client’s] room. The Member’s entries on this particular document were dated December 8 at 1940 hours, December 9 at 2400 hours and December 9at 0400 hours.

The Member explained the process of monitoring vital signs. To take someone’s temperature, the Unit has an oral thermometer that is used. To take someone’s pulse, an oxygen saturation probe is used on the finger of a [client]. It measures heart rate and oxygen saturation at the same time.

While the Member checks vital signs on his [clients], he also checks the PCA assessment. At 2400 hours when the Member had contact with [the Client], he didn’t notice anything different in terms of her emotional state. [The Client] raised no complaints with the Member at that time. The Member performed the same assessments at 0400 hours. He reported that [the Client] had no distress or any discomfort. The only complaint raised was with her trouble peeing, and the itchiness. No complaints were raised by her regarding the Member’s nursing care.

The Member testified that as part of his routine care and assessment, he would also give [clients] education about such issues as their surgical procedure, their activity after surgery and how to manage their pain. He would also provide information regarding medications after surgery and safety.

[There] is a document titled “Nursing Assessment/patient care flow sheet, 24 hour fluid balance”. The Member made entries on this document in respect of [the Client] on December 8-9 from 1900 hours to 0700 hours. This document is also kept outside of the [Client]’s room together with the Vital Signs flow sheet. The Member made entries regarding [the Client] under oral/tube feedings at 2100 hrs and at the end of his shift at 0600 hours. That document is usually completed on the night shift at 0600 hours, but entries are made before 0600 hours. The initial entry is made during the initial assessment at the beginning of the shift, but it is an ongoing assessment during the whole shift. The Member also made entries under “IV Fluid” which indicate IV solution, IV rate and IV medication given.

The top half of the page was completed by the nurse caring for [the Client] during the day. It shows that [the Client] was admitted to the unit at 3:15p.m. on December 8. It indicated that [the Client]’s IV was running at 125 ml per hour and that 50 ml of medication was given. The Foley catheter was discontinued at 4:45p.m., and [the Client] voided in the bathroom one time and the amount voided was “very small”.

After receiving the report on [the Client] from the day nurse, the Member stated, “This patient is a gyne patient post-op hysterectomy and the catheter was out at 4:45 p.m. and the patient is using a PCA, and is mobilizing to the washroom.” When the Member did his initial assessment on [the Client] he documented “HNV” which indicates “Has Not Voided” which he assessed between 1900 and 2000 hours. Another entry made by the Member indicated that he performed a bladder scan on [the Client], and the result showed 650 ml of urine. A subsequent in/out catheterization yielded 800 ml of urine. That was done between 2200 and 2300 hours. The Member also documented that [the Client] voided in the toilet twice, once for 200 mls and once for 100 mls.

As a general practice, the Member testified that if there was a change in the [client]’s status with respect to any areas noted on the Flow Sheets, he would make notations of that on the relevant part of the documentation. For “psychosocial”, the Member documented that the [client] was cooperative, no problem presented and in a calm manner. If there had been a change, he would have made notations. Under “pain”, the Member’s entries indicate that [the Client] was on a PCA, that the surgical site was checked, and that the pain was “sharp”. The Member explained that nurses would have to assess the [client] and then check the surgical site. If a [client] complained of pain, he would ask where the pain was, and for a description and location of the pain. The Member also noted that [the Client] was alert, verbalization was understandable and she was orientated to person, place and time. There was nothing significant documented in regard to [the Client]’s respiratory and cardiovascular state. Under “gastrointestinal,” the Member indicated that [the Client] was tolerating her diet, and had hypoactive bowel sounds. In order to assess bowel sounds, the Member would have listened to her abdomen with a stethoscope directly on her skin.

Under “genitourinary”, the Member documented that [the Client] had pain because at a later time she complained of distension and had not voided at the beginning of his shift. After the in/out catheterization was performed, [the Client]’s urine was amber in colour. There was no vaginal loss noted. The Member also documented that [the Client] had complained of pain, and that a bladder scan has been done. The chart read, “In/out with a good output.” The Member testified that when a patient complains of pain, nurses assess the [client]. With respect to [the Client], the Member did a bladder scan as part of his assessment, and then determined that the appropriate intervention was an in/out catheterization, which he noted had a “good result”. A “good result” means that the problem was resolved or that the distension is relieved.

Under “musculoskeletal,” the Member indicated that [the Client] had normal range of motion, no weaknesses in any of her extremities and ambulates well. Her skin was normal, she felt warm and turgor was good.

Under “incisions”, the Member documented that the site was suprapubic, there were staples in it, and that the dressing was dry and intact. There was no active bleeding noted. [The Client] was not considered a “safety risk” – meaning that her call bell was within reach, and bedside rails were up. He testified that for a [client] who is mobilizing (like [the Client] was), he tended to put the side rails up on the upper part of the bed. That was to protect patients when they are sleeping. The other two rails at the lower end of the bed are kept down because it’s much easier for [clients] to get out of bed without those side rails up. [The Client] was up independently, and did not require any assistance.

[The] PCA assessment flow sheet for [the Client] [contained] a number of entries, which started at 2000 hours on December 8 up to 0600 hours on December 9. The first column was “pain scale”, where the nurse records the [client]’s indication on a scale of 1-10 how severe their pain was. [The Client] indicated that her pain score was a 3. [The Client]’s respiratory rate, oxygen saturation and sedation scale were normal during that time. According to this document, [the Client] was sleeping at 2400, 0200 and 0400 hours throughout the night. Vital signs were also performed at those times.

Under the “pruritus” column, the Member documented that [the Client] complained of itchiness at 2000 and at 2400 hours, but none at 0200, 0400, and 0600 hours. Under “urinary retention,” the Member indicated at 2000 that he documented “F” for Foley – which is the time that he did the in/out catheterization. At 0200, [the Client] had gotten up on her own to void, and there was a collection device called a “hat” in the toilet at that time which measured how much urine was voided. When the Member did his checks at 0400 and 0600 hours, he noted there was further voiding which he recorded.

With regard to the PCA pump, there are columns under the heading “pump setting” that are in relation to the analgesic that the [client] is self-administering through the pump, according to the physician’s order. Nurses have to check that the order corresponds with the dose that is programmed into the pump. The “total cumulative amount” indicates the amount of medication that the [client] receives in a shift. At the end of every shift, the pump is cleared. By the end of the Member’s shift, [the Client] had received 46.5 mg of Morphine. The Member testified that in addition to this Morphine, [the Client] had also received a number of medications after surgery, like Famotidine, Tylenol, Toradol and Benadryl. [The Client] also had IV fluids infusing, which the chart showed was “0.9% Normal Saline with 20 mmEq of potassium added at 125 ml/hour.”

On the Unit, apart from the Flow Sheet, the nurses do “charting by exception.” This means that nurses only chart on the progress notes if there is untoward behavior or any exceptional incident that needs to be documented. The Member testified that with respect to [the Client] and the care he provided to her on December 8-9, there wasn’t any reason for him to do a progress note.

(c) Checking [the Client] for a Rash

The Member recalled [the Client] as a post-op gyne [client], who had a hysterectomy, used the PCA pump and mobilized well to the bathroom. She was well-educated.

The first information that the Member would have received regarding [the Client] would have been from the off-going nurse from the day shift. It was reported to the Member that [the Client’s] Foley catheter was removed at 1645 hours, and the [Client] voided a very small amount.

His first contact with [the Client] was at 1930 hours. At that time, the Member introduced himself to [the Client], and then he performed a head-to-toe assessment, including vital signs and regular conversation. The Member believed he asked [the Client] if she had any vaginal bleeding rather than check the maxi pad himself. He said usually he'll ask a [client] "do you have any discharge”. In cross-examination, he admitted that he could not actually remember if he did that with [the Client]. He explained that whether he did a visual check or not depended on a number of factors, including the [client’s] cognitive condition, or if there are blood drops on the floor or in the [client’s] urine output. He testified that [the Client] appeared alert, intelligent and able to answer questions.

The Member recalled [the Client] being worried that she could not urinate and was having some pain. He told her this was normal after a hysterectomy and that she should try to mobilize and void on her own and use her pain pump if she needed it. In cross-examination, College Counsel questioned his approach to [the Client]’s initial report of pain. The Member testified that his approach to assessing post-surgical pain is to ask the [client] on a scale of 1 to 10, how intense their pain is. It could be impossible sometimes to distinguish whether the pain was coming from the surgical site or from bladder distention. The Member therefore did not ask [the Client] where her pain was coming from. He testified that typically a [client] produces 30 mls of urine an hour, and [the Client]’s Foley catheter was removed at 1645 hours, so he estimated that [the Client] would have only have had about 120 mls of urine in her bladder at the time. He didn’t think that was enough to cause the bladder to be distended. The Member encouraged [the Client] to push her pain pump to help with the pain, regardless of whether it was surgical site pain, or bladder distention pain.

The Member testified that during this initial assessment, [the Client] indicated that she was “itchy all over her body”. The Member then asked where in particular she was itchy. [The Client] said, “neck, chest, head and back.” The Member checked those areas visually. At the time [the Client] was laying in her bed, and she was wearing a hospital gown and had blankets on. The Member checked her neck, and upper chest. He then asked her to turn on her back so he could check the skin in comparison with the skin of the neck, upper chest and back. He had observed her arms when he took her blood pressure, and the abdominal area when he checked the bowel sounds and the surgical site. The Member testified that [the Client] showed him her upper chest by folding the gown at the neckline and exposing her upper chest.

The Member described the sites of itchiness as “minimal redness,” he did not see any signs of adverse drug reaction, like distress, shortness of breath or difficulty breathing. [The Client] did in fact have an order for Benadryl, but was not due for another dose. He told [the Client] “let’s wait a bit and monitor you, and if you have more itchiness or any other complaint, make sure that you call me.” No further calls were made regarding itchiness.

The Member denied that [the Client] had pulled her gown up when he checked for a rash. He did recall that during their first encounter, she had pulled her gown up so he could check her incision. He testified that he had said, “Do you mind if I check your surgical site?” and that she had lifted her gown above the site (but below her breasts). He denied ever seeing [the Client]’s breasts.

In cross-examination, the Member was asked about why he hadn’t given Benadryl to [the Client] when she complained of itchiness, and it was put to him that he had discretion to give the Benadryl at the time despite the physician’s order. The Member agreed that he had that discretion but explained why he thought it best to wait. The panel was not concerned about the Member’s actions regarding his decision to withhold Benadryl at this time. Some nurses might have given it, others might not have, and the evidence was that both were defensible choices in the circumstances.

(d) The Bladder Scan

At around 2200 or 2230, [the Client] rang her call bell, complaining of abdominal distension and pain. The Member then went into [the Client]’s room. [The Client] stated that she was unable to pee, and had abdominal pain. The Member said he needed to do a bladder scan. He testified that he explained to [the Client] that it was a non-invasive procedure and involved no pain, and that it was like “having an ultrasound to check a baby in your tummy."

The Member testified that he collected the equipment necessary to perform the bladder scan and then returned to [the Client]’s room. When the Member returned to [the Client]’s room, he said he noticed some drops of blood in the urine that had been collected by the hat in the toilet. The Member then went to [the Client]’s bedside and closed the curtain. He said he positioned [the Client] on her back, had the head of the bed up approximately 15-25 degrees, and pulled the blankets down to the thigh area. He then asked her to open her legs slightly so he could check for any vaginal bleeding. No profuse bleeding was present. He testified there was no haematoma and no edema noted. He said he put back the bed sheet up to the symphysis pubis, and brought [the Client’s] gown up to the umbilical area and proceeded with the bladder scan. He also noted during that time that [the Client] wasn’t wearing any underwear.

The Member testified that he first applied gel to the end of the bladder scanning probe, and positioned the probe on her abdomen. He said the landmark is just above the pubic bone, and he positioned the probe there. The bladder scanner indicated that [the Client] was retaining approximately 650 ml of urine. The Member told [the Client] that amount, and said that she required an in/out catheterization. [The Client] agreed to this.

In cross-examination, College Counsel questioned the Member’s evidence about the drops of blood in the hat. He admitted that he did not chart these drops of blood. The Member testified that since [the Client] was using the pain pump and still complaining of pain, he knew that something was wrong. He did not know if it was bladder distention or something more serious. He decided to do the bladder scan because it was a diagnostic procedure. He wanted to conduct the bladder scan first, and then to make a decision whether the next necessary step was an in/out catheterization, or to call the physician. Once the bladder scan was done and he could see that her likely cause of pain was bladder distention, his concern about the blood went away. He had done a visual check of [the Client]’s vagina and everything seemed fine. It wasn’t a big enough problem to make a notation in the chart. The Member testified that he felt that amount of bleeding was normal, and it wasn’t necessary to document further.

(e) The Catheterization

There was a doctor’s order in [the Client’s] chart to teach [the Client] self-catheterization. The Member recalled that [the Client]’s response was along the lines of, “How could I do the self-catheterization when I can’t even bend over due a lot of pain? You have to do it for me.” The Member then gathered the necessary supplies to perform the catheterization. The Member says he returned to the room and explained the procedure to [the Client].

The Member testified that he positioned [the Client] on her back, knees flexed and legs open. Gown and blanket were placed over her abdominal area. The Member opened the catheter tray in a sterile fashion. He then applied the sterile drape over [the Client]’s perineum, and used his fingers to separate the labia. He then checked for the urinary meatus. He used his left hand to open the labia with his fingers and thumb, and his right hand to hold the forceps. He took one cotton ball and soaked it with proviodine, and then cleansed the vaginal area from up to down, one stroke starting from the far labia. He then discard[ed] the cotton ball. He then used another cotton ball soaked with antiseptic from top to bottom near the labia, and finally would use the last cotton ball, one stroke from the clitoris to the anus. The Member demonstrated his cleansing technique for the panel. This showed that when the Member cleans a female [client] during a catheterization, he starts wiping from the upper part of the far labia, going to the lower part of the labia. The second stroke is along the other side of the labia and the third stroke starts at the clitoral hood going to the anus. He uses his fingers and thumb to touch the labia. The Member’s counsel had the Member mark his cleansing technique on a diagram of the vulva, [ ].

The Member testified that after cleaning the vaginal area, he then lubricated the catheter with the gel provided in the catheter kit. Holding the labia open with his left hand, the Member used his right hand to insert the catheter into the urinary opening into [the Client]’s bladder.

The Member stated that he did not have difficulty catheterizing [the Client]. He did not notice any distress after the catheter was inserted. [The Client]’s knees were flexed approximately 90 degrees during the catheterization procedure. After the catheter was placed into [the Client]’s bladder and urine started flowing out of the catheter into the collection receptacle, the Member told [the Client] that the catheter was in. He testified that he asked [the Client] how she was feeling, and she stated, “I’m okay”. At that point, the Member said he changed hands and put his left hand onto the catheter. The Member testified that he was holding at the catheter the entire time, and his hand was probably an inch from the urinary meatus. At the time, he was watching the urine flow out of the catheter into the receptacle.

The Member indicated that his thumb was “up” towards the ceiling while holding the catheter, and he uses two hands while visualizing and assessing the perineum, so he could see the urinary meatus and ensure he has enough space to work in the area.

The Member then noticed that the receptacle was beginning to overflow due to the large amount of urine retained in [the Client]’s bladder, and he began to worry. The Member left [the Client]’s bedside and went to the sink to find another device to collect urine. During that time, the catheter slipped out of [the Client]’s meatus. When the Member returned to [the Client]’s bedside with the new container, he advanced the catheter again to resume urine drainage. The Member could not recall which hand he used to reposition the catheter, but he recalls holding the catheter with his left hand, and using his right hand to bail urine from one container to the other one.

As soon as urine stopped draining, the Member removed the catheter. After the procedure, he used a face towel to clean the extra antiseptic, which is a brown colour. While cleaning antiseptic off of a [client], you typically wipe from front to back of the perineum. The solution is quite slippery, so while a nurse is trying to hold the labia open, it can be quite challenging because it is slippery in that area. The Member couldn’t recall any difficulty while catheterizing [the Client].

The Member said that the catheterization procedure on [the Client] took approximately 10 to 15 minutes, which included gathering all of the equipment. It took 2 to 3 minutes for the urine to drain. After the catheterization was complete, the Member told [the Client] that approximately 800 mls of urine had been drained from her bladder. He had not noted any discomfort on [the Client]’s part during the catheterization. He asked [the Client] how she felt, and [the Client] responded that she was okay and felt relief. The Member then told [the Client] to call him if she had any other complaints or complications. He encouraged her to mobilize, hoping that her bladder function would return to normal.

The Member clearly stated in his evidence that [ ] after he inserted the catheter, he did not touch [the Client]’s clitoris at any time. After he inserted the catheter, he held it in his left hand, and observed the urine flowing. He did not touch her vagina after removing the catheter, other than as part of the cleaning process with a face towel.

[The Member] testified again in cross-examination that at no time during the insertion process, or after the insertion did he touch [the Client]’s clitoris or vulva with his fingers. He denied massaging her clitoris or doing any inappropriate touching at any time during the catheterization. Not even fleetingly, or by accident.

The Member denied apologizing to [the Client] at all. He denied that the [client] was crying after the catheterization. This was not challenged by the College in cross-examination.

College Counsel did cross-examine the Member about his actions in “bailing” the urine. The Member was asked why he took the risk of leaving his [client’s] bedside and breaking sterile technique to get a new container. He was asked why he didn’t just call for help from a colleague, or have [the Client] use her call bell to get someone else in. The Member testified that it did not occur to him for the [client] to use the call bell for another colleague to assist him. He said, “I know nurses are busy, but I don’t have a problem calling them, but in my own judgment it’s much easier for me and faster for me to get an extra container as long as I maintain my sterile technique.” He also testified that he probably would have called another colleague if he had trouble inserting the catheter.

The Member denied that he was concerned about calling another colleague because he knew that [the Client] was upset and didn’t want any questions raised.

In reviewing the evidence on this issue, the panel finds that the evidence of the Member in getting a new container to “bail” the urine from the full container is somewhat confusing. The panel was not impressed with the Member’s technique in leaving the [client’s] bedside and later reinserting the catheter. However, the panel does not think that the most reasonable inference from this incident is that the Member didn’t notice the first container was filling up because he was busy sexually abusing [the Client], and/or that the Member panicked because he didn’t want a colleague to come into the room and see [the Client] in an upset state. There are too many other possible, reasonable inferences, including the explanations given by the Member himself.

(f) The Second Bladder Scan

The Member testified that he provided [the Client] with a glycerine suppository for self-insertion around 0600 hours, toward the end of his shift. The doctor's orders [ ] confirm that the suppository was ordered for [the Client].

The Member testified that in the morning around 0600 hours, [the Client] requested another bladder scan because she felt full. The Member testified he did the scan and determined the bladder was not full enough to do a catheterization as the scan revealed approximately 300 cc’s of urine in the bladder. The Member did not chart that he did the second scan. He testified that he is not required to chart a bladder scan unless he performed an intervention (catheterization). The Member stated that he reported to the oncoming shift nurse, [RN B], both orally and in writing on the shift report sheet that [the Client] was feeling full and requesting another catheterization. The Member stated he asked [RN B] to monitor [the Client]’s urine output.

[RN B] testified that when she came on shift at 0700 hours on December 9, she received a verbal and written report from the Member about [the Client]. [RN B] said the Member reported [the Client] having troubles voiding, passing her urine, and that had become an issue. [RN B] testified The Member reported [the Client] requiring a catheterization around 2200, that she was voiding small amounts on her own, that he was monitoring the situation as to how much and when [the Client] was voiding, but that she felt she may have needed a catheterization that morning as she was feeling full again. [RN B]'s testimony was absolutely unequivocal that the Member had reported all this to her both orally and in writing at the commencement of her shift.

[RN B] confirmed that the written shift report is standard practice but it is not kept as part of the patient’s chart and is discarded after 24 hours. Accordingly, the actual shift chart that the Member would have filled out regarding [the Client] was not available to the panel.

[RN B] testified that she did a bladder scan approximately 20 minutes after [the Client] voided 150 cc's of urine in the "hat" sometime between 7:00 and 8:00 a.m. The scan indicated the residual amount of urine in the bladder at less than 200 CC's. This information is charted [ ]. This amount is consistent with the 300 cc’s the Member testified he estimated was in [the Client]'s bladder during the scan he says he did sometime between 6:00 and 6:30 a.m.

It is troubling that there is disagreement over whether or not a second scan was done. The Member has an obvious interest in the outcome of the hearing. [RN B], however, does not. Regardless of the outcome, it will not affect her either personally or professionally. The panel finds no reason for [RN B] to fabricate details of her testimony.

Accordingly, the panel finds it is more likely than not that the second bladder scan was performed. This is consistent with the panel’s finding that [the Client] did not come to the conclusion that she had been sexually assaulted by the Member until after she compared the care of both the Member and [RN B] and spoke to her friend on the morning of December 10, 2009. It undermines [the Client]’s assertion that she was fearful of interaction with the Member following her catheterization.

The panel has several reasons for finding that the Member performed a second bladder scan. First is the unreliability of the testimony of [the Client]. [The Client] admitted frequently that she had no memory of certain events. It has been demonstrated that she had recall of at least one event that did not occur. And often her description of events has changed in the retelling. Second, the panel is convinced by the details provided in the Member’s testimony about the time the scan occurred, and the amount of urine identified by him as being present during the second scan. Third, the panel is convinced by how the details of [RN B]'s testimony completely supported the Member’s version of events. [RN B] confirmed that the Member reported to her in the morning that [the Client] was uncomfortable and feeling she needed another catheterization. The Member’s testimony that there was approximately 300 cc’s in [the Client]'s bladder is consistent with the results [RN B] herself achieved when she performed a scan about an hour later. Most convincing is that [RN B] charted her results the morning of December 9, 2009, before [the Client] mentioned anything to her or anyone else about alleged "inappropriate touching". There was no reason for [RN B] to be creative in her charting details to support the Member because she had no idea there would be an allegation with respect to his care of [the Client].

The panel does not suggest that when [the Client] denied this second bladder scan, she was being deliberately deceptive. The panel prefers to believe that [the Client] has misremembered or forgotten this detail altogether, as she has so many other details, rather than believe that [the Client] made a conscious decision to deny it.

(g) Discovery of the Allegations

The Member first learned that [the Client] had raised concerns regarding his nursing care on the next night, December 9. When the Member arrived for work on December 9, he noticed that he had a different room assignment from the previous night. He was then asked to go into the Charge Nurse’s office, and the Charge Nurse told him that [the Client] had said that the Member “was touching her private parts during the catheterization.” The Member stated he was shocked when he first heard of this complaint. This was supported by the evidence of the Charge Nurse, who testified in this hearing. The Member stated he had no complaints about his nursing care before. He thought that the complaint was bizarre.

On December 10, the Member received a call from the Nurse Manager, [ ]. [The nurse manager] told the Member that she had received a complaint about him. He then went to the [Facility] for a meeting with hospital administration. The Member couldn’t remember all of the details from the meeting. Following the meeting, the Member made notes of what took place at the meeting [ ].

The Member was then suspended for five days. The [Facility] developed a learning plan during the Member’s suspension. When he returned to work, he was placed on a Monday to Friday schedule and worked closely with the [Facility] nurse educator. The learning plan consisted of learning of catheterization with a mannequin and with actual [clients], learning with regards to bladder scanning and readings with being sensitive to the [client]. He watched “One is One Too Many” on preventing abuse. The learning plan set out various learning objectives, indicators and strategies.

On the nurse educator’s evaluation, it was noted that the educator wrote “more explanation. Need to talk to [client] more during procedure.” It was also suggested that the Member reinforce his use of language and use terminology that [clients] understand. The Member testified he was told that nurses should try to explain procedures to [clients] in layman’s terms. Because of his training and background, the Member tended to use more formal, medical language with [clients].

The Member completed his learning plan but did not he think he required it in the first place. He testified that there were no differences in his scanning or catheterization procedures at the end of his learning plan as compared to before.

The Member was cross-examined extensively on his understanding of College standards and his approach to [clients] generally.

Other Evidence – The Medical Charts

The primary method of charting used at this facility was a document titled “Nursing Assessment/ patient care flow sheet” (referred to as “Flow Sheet”) for documenting assessments of different systems. The Flow Sheet for [the Client] was admitted into evidence. In addition to filling out the Flow Sheet, nurses were expected to chart by exception. The panel heard evidence that the Flow Sheet was used as a means of charting an initial assessment as well as to provide an ongoing assessment of a [client]. Otherwise, nurses would chart by exception.

The panel found that the charting used by the Facility presented some challenges in providing a clear understanding of some of the sequences of events. There was a lack of information found on the Flow Sheet in relation to the timing of events and assessments. The Flow Sheet did not easily distinguish between initial charting and subsequent event charting, as often there is no time indication. The progress notes did not seem very thorough because of the practice of charting by exception. This complicated factual matters such as the Member’s claim that he performed a second bladder scan but did not chart it because there was no catheterization required or done.

It was also unfortunate that the shift report the Member provided to [RN B] was not available, as it was not part of the legal chart and had been destroyed. Many of the witnesses referred to information contained in this document and it would have been helpful to the panel.

Other Evidence – Nursing Experts

The College and the Member each tendered an expert witness qualified by the panel to give opinion evidence about relevant nursing standards. Both witnesses testified frankly, honestly, and helpfully. Both were aware of their duties to the panel and did their best to give evidence that was non-partisan and responsive to the issues.

In light of the factual findings made by the panel, especially concerning [the Client]’s credibility, the evidence of the nursing experts was not generally necessary to resolve the issues before the panel with respect to the Member. Both explained the processes and techniques used to perform catheterizations and bladder scans, which was useful background information that some of the panel members did not have and which helped the panel to understand and visualize the evidence of other witnesses.

Both nursing experts testified that a [client] could interpret the cleansing motion associated with catheterizations as a sexual assault, however, they said that such an interpretation would not be reasonable if the procedure was properly explained to the [client]. The panel finds that in this case, [the Client] made an unreasonable assumption some time after the fact that she had been sexually assaulted.

Final Submissions

Both parties submitted detailed written closing submissions, which the panel considered carefully.

Both parties agreed that the College has the burden of proof and that the standard of proof that the College must meet was proof on a balance of probabilities. Each allegation must be tested against this standard and if the College fails to meet this standard that allegation must be dismissed.

Both parties also agreed that it was important for this panel to assess credibility. Credibility assessments require the panel to judge whether the witness is being truthful and giving an honest recollection of events, and whether the witness’ recollection – even if honestly given – is accurate. This would include a common sense evaluation of the witnesses’ powers of observation, judgment and memory, and ability to describe clearly what was seen and heard. The most satisfactory test for truth often lies in examining the harmony of a witnesses’ version of events with the preponderance of probabilities disclosed by the facts and circumstances of the case. Innocent errors in recollection are not uncommon. Inconsistencies on minor matters should not affect the credibility of the witness. The panel accepted and applied these submissions in this case.

The parties had very different views as to what evidence was credible and should be believed by the panel.

College’s Submissions

Ms. Rothstein reminded the panel that there is no “normal” way for a complainant of sexual assault to react and credibility should not be based on the victim’s stoicism or displays of emotion. No weight should be given to the fact that [the Client] did not challenge the Member when he asked her to expose her breasts, or her vaginal area during the bladder scan; that [the Client] didn’t tell the Member to stop when he touched her inappropriately; that she didn’t report the incident on her first opportunity to [RN B]; that she didn’t retell the complaint to the other nurses that provided her care; that her demeanour “seemed fine” to the nurses caring for her; that [the Client] showed strong emotions under cross-examination; or that [the Client] acknowledged her anger during her testimony.

Ms. Rothstein asked the panel to use caution when weighing the evidence of the Facility witnesses as evidence of prior inconsistent statements of the direct witnesses (including [the Client], the Member and [RN B]), as their process for the investigation was flawed.

Ms. Rothstein submitted that [the Client] is a very credible witness. She came across as intelligent, thoughtful and decent. She demonstrated a strong memory and a keen grasp of details. [The Client] responded in a direct, frank and straightforward manner. Her evidence was unwavering with respect to salient details of her complaint. Her limitations in recollection of minor details are understandable given the passage of time. Her willingness to acknowledge the gaps [is] a credit to [the Client] and does not mean that less weight should be given to her evidence. Where inconsistencies lie between [the Client]’s testimony and the notes created by the Facility’s staff, their investigation should not be used to discredit [the Client] as the Facility’s investigative process was flawed. [The Client] should not be faulted for not providing [RN B] with all the details when first reporting the incident.

Ms. Rothstein submitted that [the Client] disclosed considerable details to [the social worker], who immediately recognized it as a complaint of sexual abuse. [The social worker] did not probe into details of the bladder scan or the catheterization; however, [the Client]’s evidence is consistent with the evidence of [the social worker] and as contained in her handwritten notes. Ms. Rothstein submitted that [the social worker] is an extremely credible witness and the panel should accept her evidence.

With regards to any theory that [the Client]’s evidence is not reliable because of medication, College Counsel submitted that the Member’s own charting refutes this claim as he documented [the Client] as alert and oriented, and he had no concerns about her mental status.

In contrast, Ms. Rothstein would have the panel find that the Member’s evidence was improbable, and at times internally inconsistent. She submitted that the Member revealed a weak understanding of the therapeutic nurse/client relationship, and repeatedly denied learning anything from the learning plan which the Facility required him to undertake as remediation for this complaint. His explanation for his documentation is implausible. His explanations for checking for vaginal loss before doing the bladder scan and responding to [the Client]’s complaint of itchiness are not credible.

Ms. Rothstein submitted that much of the evidence from the Member accords with that of [the Client] regarding the catheterization, except for the inappropriate touching. However, she submitted that a reasonable and prudent nurse would not bail overflowing urine in the face of other options to end the catheterization. She would have the panel infer that the Member’s actions were a panicked reaction resulting from a period of distraction while he was improperly touching [the Client]. Furthermore, he was reluctant to call for help as this would provide [the Client] with an opportunity to complain. Ms. Rothstein submitted that the Member’s evidence regarding the request by [the Client] for a bladder scan and catheterization in the morning of December 9 is not consistent with the weight of the evidence.

Ms. Rothstein submitted that for the most part, the evidence that [RN B] had direct knowledge about was reliable. She testified under difficult circumstances. Ms. Rothstein asked the panel to accept [RN B]’s evidence over the Member’s evidence where their evidence conflicts.

With regards to the nursing experts, College Counsel submitted that [Expert A] was an experienced nurse, and a frank and credible witness whose expert opinion should be accepted. [Expert A]’s evidence was in a large part consistent with [Expert B]’s. They agreed on many of the standards of practice issues. Ms. Rothstein submitted that [Expert B] received a hypothetical that was inconsistent with the Member’s evidence. She stated that both experts agreed that the Member should have communicated the second bladder scan to [RN B], which he did not. The panel should infer that the Member never did the second bladder scan, which is why he never documented it.

Ms Rothstein submitted that there was no evidence to suggest that [the Client] was hallucinating or confabulating or was sedated at the time of her interactions with the Member. The direct witnesses (the Member and [the Client]) have similar report[s] of events. The significant similarities between [the Client] and the Member should put to rest any speculation that [the Client] was hallucinating, was sedated, had an impaired memory or cognitive function, or is otherwise an unreliable witness. The expert evidence of the Member on this point was not credible, as in College Counsel’s view, [Expert C] was a very unreliable witness. His report and his evidence were misleading and rife with errors. In contrast, the College’s expert witness, [Expert D], was knowledge[e]able, experienced, careful and credible. His opinion should be accepted over [Expert C]’s.

Final Submissions – The Member

Ms. McIntyre submitted that the Member had no sexual intent in the course of providing care to [the Client] at any time and that all his nursing interventions were conducted for a legitimate therapeutic purpose. She submitted they all involved communication and touch of a clinical nature appropriate to the service provided. She further submitted that the manner in which the Member carried out his nursing interventions on [the Client] were consistent with the standards of the practice of the profession.

Ms. McIntyre reiterated that the onus of proof in disciplinary hearings [is] entirely on the College, based on admissible evidence. The panel is not entitled to rely on its own knowledge and expertise to make a finding on a point where there is no evidence. There must be evidence upon which a finding of fact is made, regardless of the panel’s specialized knowledge of the matters at issue.

Ms. McIntyre submitted that contemporaneous hospital records, including charting of nurses, constitutes proof of the facts contained unless disproven.

Ms. McIntyre submitted that in cases where sexual abuse findings have been made on the basis of allegations that a health care professional touched a [client’s] genitals inappropriately in the course of a clinical procedure, there has been evidence of sexual intent and/or arousal on the part of the accused professional. She provided examples of such cases in her authorities.

As to the allegation that the standards of practice were breached, Counsel for the Member submitted that clear, cogent and convincing evidence must be presented by the prosecution as the panel is not allowed to rely on its own expertise in determining what the standards of practice are or whether they have been met. Where standards of practice are in dispute, the College will call an expert to establish the clear standard. Whether written or unwritten, the standards of practice, as presented to a Discipline Committee, must be clear and ascertainable in order to facilitate an intelligible decision-making process. The standards by which the member is judged should become part of the evidentiary record and must be proven through clear, convincing, and cogent evidence.

Ms. McIntyre submitted that the standard is not perfection. A regulated health professional may breach particular practice standards but still remain fit and capable to practi[s]e and provide care. The standard applied by a panel of the Discipline Committee is not one of perfection. A breach or departure from standards does not routinely amount to professional misconduct. Rather, it is only breaches of minimum standards (and not breaches of “best practice”) that constitute professional misconduct. Further, discipline committees have long accepted the proposition that an error in judgement does not constitute professional misconduct.

Ms. McIntyre summarized the background and experience of the nursing experts and submitted that the expertise of [Expert B] should be preferred over that of [Expert A]’s where there is conflict between their articulation of the relevant standards of practice.

Ms. McIntyre submitted that the panel should not hold the fact that a witness’ first language is not English against them. The fact that a witness is not testifying in his mother tongue should not undermine his credibility.

Ms. McIntyre raised the rule in Browne v. Dunn, saying the prosecution cannot leave a witness’s evidence unchallenged and later challenge it in its arguments, as this deprives the witness of an opportunity to provide an explanation. In her submission, it would be unfair for the panel to make a finding against the Member on aspects of [the Client’s] allegations that were not put to the Member in cross-examination.

Ms. McIntyre agreed with Ms. Rothstein that it is important to avoid myths and stereotypes about sexual assault complainants when assessing the credibility of complainants. However, the credibility of individuals making serious allegations against nurses that could result in ending their careers must be subject to rigorous analysis consistent with the generally applicable legal framework for assessing credibility. She submitted that [the Client]’s evidence exhibits a number of features that undermine the reliability of her testimony and indicate that the panel should be cautious in preferring her version of events where it conflicts with the Member’s.

1. [The Client] made a number of inaccurate statements regarding basic personal facts that call into question the accuracy of her memory generally and the precision with which she approached her narrative.

2. [The Client] made several statements that specifically call into question the reliability of her ability to perceive and recall events. For example, she could not remember the shower in her room, and not having a shower because of her incision. She could not recall where her IV pole and pain pump were located, the glycerine suppository the Member gave her in the morning. [The Client] had a limited opportunity to observe the catheterization because she could not see.

3. Ms. McIntyre submitted that there is ample evidence from both medication experts that the medications [the Client] was receiving during and after surgery could have effects on her central nervous system, consciousness and memory that could have affected her ability to accurately perceive and/or recall events. Ms. McIntyre submitted that both experts, [Expert C] and [Expert D], were predominately consistent with regards to their evidence. In particular the College’s expert, [Expert D], agreed that “even in small doses morphine has an impairing effect on working memory”, that morphine can lead to feelings of not being able to think clearly, that he could not rule out whether [the Client] experienced any of the adverse event associated with morphine, that morphine “could have interfered with her recollection” and finally that the medications she was administered would all have affected her central nervous system.

4. Ms. McIntyre submitted that [the Client]’s evidence revealed inconsistencies in her narrative as recorded at various points in time following the event. The first recorded account of the allegations by [the Client] is in the notes of [the social worker]. [The Client] reviewed the rough notes to ensure accuracy. [The Client]’s own notes of events were created a month after the incident, unlike [the Member]’s notes which were nearly contemporaneous. Nearly four months after the event, during the police investigation, [the Client] added significant allegations after having had a number of discussions with the Facility and her physician and counsellor. Ms. McIntyre submitted that [the Client]’s testimony differs from both the contemporaneous documentation of her first detailed report and the Statement of Claim in her civil suit. [The Client] admits that she approved the version of events in the Statement of Claim, but now seeks to explain the differences between that Claim and her evidence in this hearing as mistakes.

5. Ms. McIntyre submitted that [the Client]’s evidence was inconsistent with the evidence of other fact witnesses, demonstrating an unreasonable commitment to minor facts and/or a tendency to exaggerate. For example, [the Client] repeatedly denied a urinal hat was in the toilet despite the evidence of the Member, [RN B] and [Nurse C]. [The Client]’s testimony about her emotional state after telling [RN B] about her allegation was that she had been “hysterical” and an “explosion of emotion” and crying loud enough that she assumed [RN B] could hear her through the curtain. This does not accord with the evidence of [RN B] or [Nurse C].

6. Ms. McIntyre submitted that [the Client] has admitted to a desire for vindication and restitution.

With regard to the Member’s credibility, Ms. McIntyre submitted as follows.

A. The Member created contemporaneous notes of the events in the form of his hospital charting [ ]. He also made near-contemporaneous notes following his first meeting with the Facility on December 10, 2009 [ ]. His testimony was consistent with the notes and the charting and did not evolve over time.

B. The Member’s testimony and notes are consistent with notes of third parties who did not review each other’s notes, primarily those notes taken in the course of the Facility’s investigation.

C. The Member was unaware of all of [the Client]’s allegations at the time of his first meeting with the Facility on December 10, 2009, or while making his notes. Ms. McIntyre submitted that the Member only became aware after April 2010 of the allegations that he exposed [the Client]’s breasts, exposed [the Client]’s vaginal area during the bladder scan, apologized to [the Client] after the catheterization, and touched her clitoris after inserting the catheter.

D. The Member’s charting, notes and testimony consistently contain details that [the Client] does not remember and are against his interest, in particular the reinsertion of the catheter. The fact that his account of events consistently includes this detail for which he was criticized by [Expert B], the Member’s nursing expert, increases the likelihood that his testimony is accurate and truthful.

E. The Facility’s investigation concluded that [the Member] had no sexual intent in providing care to [the Client] but identified issues with his catheterization process for which he completed a learning plan.

F. The panel ought to consider any lack of clarity or perceived inarticulateness in the Member’s evidence in light of the fact that he was testifying in a language other than his mother tongue. Furthermore, the Member’s linguistic and cultural background provide significant context in which the panel should assess the Member’s testimony with respect to his understanding of the standards of practice.

With regards to the conclusion by the nursing experts, apart from the allegations of sexual abuse, Ms. McIntyre submitted that [Expert A]’s only concern was with the Member’s failure to document the second bladder scan, but conceded it did not constitute a breach of the nursing standards. [Expert A] did not comment on the reinsertion of the catheter. [Expert B]’s only criticism was with the reinsertion of the catheter and she testified that the remedial action on the technique for catheterization was appropriate.

Decision

As alluded to throughout these reasons, the panel is aware that the College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities and based upon clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the panel is unable to find that the Member has committed acts of professional misconduct as alleged in paragraphs 1, 2, 3 and 4 of the Notice of Hearing. Accordingly, the panel dismisses all the allegations

Reasons for Decision

1. The Allegations of Abuse

With respect to the allegations of abuse (including sexual abuse), the Member and [the Client] are the only direct witnesses to the events of the night shift during which the abuse allegedly occurred.

There are some crucial areas, those areas from which the abuse allegations arise, where the testimony of [the Client] must demonstrate to the panel that the College has proved its case on a balance of probabilities. As [the Client] is both the complainant and the only witness other than the Member to actually have been present during the alleged event, much relies on the credibility and reliability of her testimony. The hearing was very long with many witnesses, but in essence the issue was whether or not the panel found that the evidence provided by the witnesses (especially [the Client]) is clear, cogent and convincing such that the events as [the Client] described them were more likely to have occurred than not.

In this case, based on the unreliability of the evidence of [the Client], the College was unable to prove the allegations. The panel found the testimony of [the Client] to be inconsistent, unreliable and unconvincing. Many of the reasons for this are apparent from our review of the evidence, above.

On the particulars, the three abusive acts alleged by the College are that:

• The Member directed [the Client] to raise her gown and expose her breasts for no clinical purpose;
• The Member exposed [the Client]’s vaginal area during the bladder scan for no clinical purpose; and
• The Member touched [the Client]’s genitals for no clinical purpose following the insertion of the catheter and before the bailing of the urine.

The College claims these acts constitute sexual abuse, as well as verbal, physical and/or emotional abuse. Sexual abuse is a specific form of professional misconduct that is defined in s. 1 of the Code as follows:

(1) (3) in this code, “sexual abuse of a patient by a member means,

(a) sexual intercourse or other forms of physical sexual relations between the member and the patient

(b) touching of a sexual nature, of the patient by the member or

(c) bevaviour or remarks of a sexual nature by the member towards the patient.

(1) (4) For the purposes of subsection (3) “sexual nature” does not include touching, behaviour or remarks of a clinical nature appropriate to the service provided.

(a) Directing [the Client] to Expose Her Breasts

Even if one accepts [the Client]’s account of the direction she says she was given to lift her gown, the panel cannot find that the evidence is sufficiently clear, cogent and convincing to conclude it more likely than not that the Member abused [the Client]. [The Client] told the Member that she was itchy all over and wanted medication to treat the itch. Itchiness is a common side-effect of the mediation [the Client] was taking. It appeared to the panel as if [the Client] expected the Member to provide the medication without checking for a rash. Evidently, despite having no concerns at the time that the Member allegedly requested that she lift her gown, [the Client] apparently concluded some time after the fact that a visual check for a rash would be inappropriate. She drew this conclusion despite having been told by [Dr. A] that it was common for nurses to visually check for the existence of a rash.

On her version of events, [the Client] acknowledged that the Member did not actually ask her to lift her gown above her breasts but rather indicated with his hands to lift it. [The Client] stated that she lifted the gown and exposed her breasts because that's how high his gesture indicated she should raise her gown. The panel questions her interpretation of this alleged gesture. If the Member, who is not a tall man, was standing at [the Client]’s bedside as she testified he was, and if he gestured with a lifting motion of his hands for her to raise her gown, he would have had to start with his hands already above his waist and then proceed to move them upward in order for her to see the gesture he was making.

The panel notes that the Member completely denied that he made a request or a gesture for [the Client] to lift her gown, or that he at any time observed [the Client]’s breasts. Assuming that [the Client] is correct and the Member did make a gesture for her to lift her gown, the panel is not satisfied that the gesture [the Client] described could reasonably be interpreted quantitatively to indicate that she should lift her gown to a specific height in order to expose her breasts. The panel is more inclined to believe it was more likely to simply be a universal gesture to lift.

[The Client] testified that the Member did not check her for a rash anywhere other than her breasts. It seems clear to the panel that in the course of performing his regular care, the Member would have observed whether there was a rash on her arms, face or neck without asking [the Client] to expose those body parts (they were already exposed) or remarking on them. For [the Client] to state (as she did) that the Member did not check any other parts of her body is an assumption which seems to imply that all the Member was interested in was seeing [the Client]’s breasts and not in observing a rash. In a hospital gown, the face, neck and arms of the [client] are exposed. The panel believes that it was reasonable that the Member would have observed that there was no rash in these exposed areas while he simultaneously took her blood pressure, checked her IV lines and provided other routine nursing care.

Finally, the detail about being directed to lift her gown above her breasts was not disclosed to the Facility during its initial investigation of the allegations. It was not disclosed to [RN B], or to [the social worker], or to [the nurse manager], the people to whom [the Client] first reported the alleged incident. [The Client] did not report this to the Facility until after its initial investigation was concluded.

This allegation surfaced over three months after the alleged event, and then only after [the Client] finally told her [spouse] on March 15, 2010 that she believed she had been sexually assaulted while in the [Facility]. It was only after her [spouse] contacted the Facility and set up a meeting for March 18, 2010, that this new detail (among others) began to emerge. The panel finds that, taking [the Client]’s evidence at its best, the most likely explanation is that, with hindsight, [the Client] has misinterpreted an innocent gesture to lift her gown to check for a rash.

(b) Exposing [the Client]’s Vagina During the Bladder Scan

What [the Client] told [RN B], if [RN B] is to be believed, is that the Member flopped her legs open before the bladder scan. Yet in [the Client]'s evidence in chief, she describes that the Member asked her to open her legs and used a gesture of touching the side of her leg to indicate what he wanted her to do.

The panel notes that [the Client] reported that this action occurred during the bladder scan. However, the actions she described are more consistent with what would have been required to perform the catheterization, unless this is when the Member performed the check for vaginal bleeding. [The Client] denied that the Member checked her for vaginal bleeding during the scan but stated rather that the Member checked for this during their first interaction.

The panel accepts that keeping the [client’s] legs apart during a bladder scan is unnecessary. However, the Member testified that he did check for vaginal bleeding prior to the bladder scan and then replaced the blankets to the level of the symphysis before doing the scan. The Member himself agreed that it was unnecessary (and hence inappropriate) for [the Client] to continue to keep her legs apart and her vaginal area exposed once the check for vaginal bleeding was done. Although the Member’s account differs from [the Client]'s recollection, the panel finds it the more reasonable explanation. The panel is convinced [the Client] is misremembering the details, essentially blurring the details of the bladder scan with the details of the catheterization and perhaps the check for vaginal bleeding together. This is consistent with how [the Client] remembered (or misremembered) other care that she received from both the Member and [RN B].

(c) The Catheterization

It is clear to the panel that [the Client] has very little if any independent recollection of the details surrounding the catheterization. Her insistence that the touching occurred after the catheterization occurred is remarkable, considering her lack of memory of any other specific details.

[The Client] denied remembering being draped for the catheterization procedure, she denied remembering that the Member used his index finger and thumb to spread the labia and expose the urethra. [The Client] denied any memory of the Member using iodine-soaked cotton balls to clean the vaginal area. She denied remembering the placement of her pain pump or IV. She denied any memory of the catheter slipping out or remembering it being reinserted. She has no recollection of whether or not the urine being drained overflowed onto her bed during the catheterization.

Initially [the Client] testified that she was not really paying attention while the Member was cleaning and draping her in preparation her for the catheterization. She relied on that statement to explain being unable to remember whether or not she was cleaned or draped by the Member during the catheterization, or whether he cleaned her up afterwards. The panel finds this explanation implausible. The panel takes notes the inconsistencies of [the Client]’s testimony. Although stating over and over again that she was unable to recall details of the procedure, [the Client] insisted she was paying attention, which is contrary to her earlier explanation that she wasn't really paying attention. Additionally, the account [the Client] provided of not really paying attention when the Member began the in and out catheterization process throws into question her statements regarding the bladder scan. Logically, if [the Client] was disturbed about her sheets being pulled down by the Member to unnecessarily expose her vagina, or if she was concerned about the placement of the wand on her pubis, or with her legs being flopped open during the scan, why would she be so relaxed that she "wasn't really paying attention" when the Member began the catheterization, a far more invasive procedure? There is an inherent incompatibility in these two assertions.

Later, [the Client] would testify that during the catheterization, she was staring at the ceiling, and that she knew what the Member was doing was wrong and that she didn't know what to do. She says she started to cry and the Member apologized to her. She says she later pretended to be asleep so the Member wouldn’t tend to her. However, in stark contrast to this statement, she apparently told [the social worker] that she only realized that the Member had acted inappropriately the day after he performed the catheterization, when [the Client] compared his nursing practices to those of [RN B].

Despite all the lapses in her memory, [the Client] refused to admit she may be mistaken in her recollection that the Member touched her inappropriately. When it was suggested in cross-examination that she could not be 100 percent sure that the touching that occurred was anything more than what the Member was required to do to perform the procedure, [the Client] responded that, "I would say you are 100 percent incorrect." [The Client] would not acknowledge that she may be incorrect in her interpretation of what occurred.

Moreover, the testimony of [the social worker] contradicts the statement made by [the Client] about the motion the Member allegedly used and how she initially reported the alleged touching (facts about which [the Client] says she is certain). [The Client] denied that what [the social worker] wrote down was correct, but [the social worker] showed [the Client] what she was writing when she wrote it. If [the social worker] wrote it down incorrectly, then why didn't [the Client] correct it at the time?

If the panel accepts as correct [the social worker]’s evidence about what [the Client] initially reported to her, and the Member’s left hand rested on [the Client]'s vagina near the clitoris the whole time the Member performed the catheterization, it was probable that he was holding the catheter in place so the catheter would not slip out, which did in fact happen when he let go of the catheter to retrieve another basin.

If the panel accepts as correct [the Client]’s evidence at the hearing, which was that the Member performed an upside-down u-shaped motion around her vaginal area as described, then this event, while perhaps technically possible, is highly improbable. If using his non-dominant left hand to perform this motion, the Member would need to let go of the catheter, possibly hold it in his right, and while the left hand continued to rest on the vagina near the clitoris reach down one side of the vagina almost to the anus, move up that side of the vagina across the clitoris and down the other side of the vagina almost to the anus again, all without [the Client] seeing that his hand or arm is moving. All this would have had to occur with neither hand holding the labia open to expose the vagina and clitoris because both hands would clearly be otherwise occupied.

Alternatively, if the left hand remained on the vagina near the clitoris holding the catheter in place and the Member used his right hand to perform the motion up one side, across, and down the other as described by [the Client], it would be technically almost impossible. Why? Because if his left hand (whether resting on the pubis or not) was holding the catheter in place, his right hand could not be able to cross over the left hand holding the catheter to complete the motion of going up one side, across, and down the other. As the urethra is located below the clitoris and they are usually in close proximity, the catheter and the fingers of the Member’s left hand would impede the completion of the upside down u-shaped motion [the Client] described, or at the very least make is so awkward as to be obvious. If it were obvious then [the Client] should have been able to tell which hand he used. But she testified she didn't know what hand he used. She didn't know if he used one finger, or a couple of fingers. She admitted that she couldn't even positively state that she would know if it was his fingers or a cotton ball dipped in iodine.

The panel is aware (and the evidence was clear) that a motion that to a lay person bears similarities to what [the Client] described as the inappropriate touch would in all probability have been used to cleanse the area prior to the insertion of the catheter. [The Client], however, insisted that the motion occurred after the insertion of the catheter. The panel cannot dismiss the statement that [the Client] made that she was not really paying attention nor can the panel dismiss her memory lapses in many instances, including timing, the location of items, and events that took place. The panel finds that it is quite possible that [the Client] is misremembering the details and sequence of events.

The panel is aware (and the evidence clearly established) that during the catheterization, [the Client] would have been required to open her legs, and have the sheets turned down to expose her vagina so that the catheter could be inserted. Although she had no recollection of being cleansed and draped she did admit during cross examination that these actions could have occurred and she simply could not remember them. It is important to note that she cannot recall details other than the motion the Member allegedly used to "inappropriately touch" her and that she is adamant that this occurred "after" the insertion of the catheter.

So [the Client] cannot remember if or when she was cleansed for the catheterization, whether or not she was draped for the procedure, cleaned up after the catheter was removed, who pulled up her sheets, who raised her bed, or a myriad of other details examined in the hearing including the placement of the shower stall, and the presence of the “hat" to measure urine. Yet the panel must accept that [the Client] has a clear and reliable recollection of the details of the "inappropriate touching" and clear and reliable recall of exactly when this touching occurred in order to find against the Member on this issue. The panel would also have to accept that although [the Client] was absolutely certain that she was taken to and assisted in having a shower she did not have (as testified to by [RN B]), that there is no possibility that any of the other details she provided could have been misremembered or incorrect.

There is simply insufficient factually accurate detail for the panel to make a finding that the Member sexually assaulted [the Client]. There is simply too much that [the Client] does not remember and too much that she claims to remember that did not occur.

If the panel had found that one of more of these allegations of abuse had occurred, the panel would have had no hesitation in concluding that the Member had committed sexual abuse, physical and emotional abuse, had breached the standards of practice, and had engaged in conduct that would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. However, the panel cannot make the factual findings to substantiate these allegations

2. The Alternative Allegations

With respect to the allegations that the Member, even if not guilty of abuse, still breached the standards of practice of the profession and engaged in conduct that would reasonably be regarded by members to be disgraceful, dishonourable, and/or unprofessional, the panel considered the three particulars alleged by the College.

It is worth noting that the panel was troubled by the Member’s admitted reinsertion of the catheter. The panel is inclined to agree with [Expert B]’s expert testimony that the Member failed to meet the standard of practice of the profession related to catheterization, and specifically with respect to the Member’s reinsertion of the catheter. However, the panel did not need to determine whether this breach amounted to professional misconduct in all the circumstances. According to both parties, this allegation was not particularized in advance of the hearing and is therefore not before the panel.

(a) Failure to explain and obtain informed consent

[The Client] did not deny that she consented to being examined by the Member, to having a bladder scan performed by the Member, or to being catheterized by the Member. In fact, these procedures were initiated by her complaints of itchiness, failure to void, and bladder discomfort and pain.

[The Client] does not recall the Member explaining much about these procedures to her. The panel has already noted the frailties of her evidence. Moreover, even with her limited recall, it is clear from [the Client]’s own evidence that she was aware that the Member was going to perform a bladder scan to see how much urine was in her bladder. She was aware that as a result of the bladder scan, she required an in and out catheterization. The panel makes no finding against the Member on this allegation.

(b) Exposing [the Client]’s vaginal area during the bladder scan

The only evidence that the Member exposed [the Client]’s vaginal area during a bladder scan in an inappropriate way comes from [the Client]. The Reasons above explain why the panel cannot rely on [the Client]’s evidence. The panel finds that the more likely explanation is that the Member exposed [the Client]’s vaginal area to check for bleeding (which was appropriate) and that the Member later exposed [the Client]’s vaginal area to catheterize her (which was appropriate). [The Client] has likely blurred these events together and misremembered them.

(c) Failing to Document the Results of the Second Bladder Scan

The panel has found that it is more likely than not that the Member did perform the second bladder scan. The panel accepts that he did not document the bladder scan perfectly. However, the panel believes that without the allegation of sexual assault, the Member would likely not be before the panel. Whether or not there were any minor errors or omissions in the chart, the issue would not have come to the attention of the College but for the sexual assault allegation. Stripped of the context of the abuse allegations, would a panel make a finding that failure to record a bladder scan in the [client] chart constituted professional misconduct? The panel is of the opinion that it would be inappropriate and unfair to make a finding of professional misconduct for failure to document the second bladder scan in this instance.

I, Zahir Hirji, RN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel as listed below:

Chairperson Date

Panel Members:

Michael Hogard, RPN

Miranda Huang, RN

Debra Mattina, Public Member