College of Nurses of Ontario v. Albert Kwan, 2015 ONCNO 102549

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Tammy Hedge, RPN Chairperson

Winsome Plummer, RN Member Laura Sanderson, RPN Member Cathy Ward Public Member

Chuck Williams Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) BONNI ELLIS for ) College of Nurses of Ontario

• and - )

ALBERT KWAN ) NO REPRESENTATION for Registration No. JD87033 ) Albert Kwan

) JOHANNA BRADEN

) Independent Legal Counsel

) Heard: October 19, 2015

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on October 19, 2015, at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Albert Kwan (the “Member”) were set out in an Amended Notice of Hearing dated October 19, 2015. Counsel for the College advised the panel that the College was requesting leave to withdraw the allegations set out in paragraphs 1(i)(i), 1(j), 3(b)(ii), 3(b)(iv), 3(b)(v), 3(c) and 5(e) of the Amended Notice of Hearing. The panel granted this request. The remaining allegations against the Member are as follows.

IT IS ALLEGED THAT:

1. You have committed an act or acts 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 paragraph 1.1 of Ontario Regulation 799/93 in that, while working as a Registered Practical Nurse at [the Facility], you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession when:

a. on or about December 31, 2012, you accompanied [Client A] to the store to purchase cigarettes, contrary to [Client A’s] care plan and/or in circumstances where [Client A] was prescribed and using Nicotine patches and Nicotine gum;

b. in or about December 2012, while [Client A] was an in-patient in [a medical withdrawal unit (“the Unit”)] at [the Facility], you asked [Client A] to leave you [Client A’s] phone number with the intention of contacting [Client A] after [Client A] was discharged;

c. in or about January 2013, shortly after [Client A] was discharged as an in-patient from [the Unit] at [the Facility], you contacted [Client A] and asked [Client A] to go for coffee;

d. between approximately March 2013, not long after [Client A] was discharged as an in-patient from [the Unit] at [the Facility], and September 2013, you engaged in a romantic relationship with [Client A];

e. between approximately March 2013, not long after [Client A] was discharged as an in-patient from [the Unit] at [the Facility], and September 2013, you engaged in a sexual relationship with [Client A];

f. between approximately March 2013, not long after [Client A] and [Client B] were discharged from [the Unit] at [the Facility], and June 2013, you frequently stayed over at the one-bedroom apartment, which [Client A] and [Client B] were sharing;

g. between approximately June and September 2013, you started living with [Client A] in the one-bedroom apartment and paying half of [Client A’s] rent;

h. between approximately March 2013, not long after [Client A] was discharged as an in-patient from [the Unit] at [the Facility], and September 2013, you provided [Client A] with medications you had taken from [the Facility], including Acetaminophen, Diazepam, Furosemide, Seroquel, Quetiapine, Loperamide, Advil, and/or Lorazepam, in circumstances where you knew or ought to have known that [Client A] was taking the medications and this was not consistent with what [Client A] had been prescribed;

i. between approximately March and September 2013, you interfered with the advice that [Client A] had received from [Client A’s] treating physician(s) at [the Facility] regarding [Client A’s] medications and, in particular, you:

i. [Withdrawn]; and/or

ii. made suggestions to [Client A] regarding which medications [Client A] should and/or should not be taking and/or the appropriate dose;

j. [Withdrawn];

k. between approximately March 2013, not long after [Client B] was discharged as an in-patient from [the Unit] at [the Facility], and July 2013, you entered in a personal relationship with [Client B] when you started staying at the one-bedroom apartment that [Client B] was sharing with [Client A]; and/or

l. between approximately March 2013, shortly after [Client A] and [Client B] were discharged as in-patients from [the Unit] at [the Facility] and September 2013, you expressed a desire to physically harm [Client B]

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 paragraph 1.8 of Ontario Regulation 799/93 in that, between approximately March and September 2013, while working as a Registered Practical Nurse at [the Facility] in [ ] Ontario, you misappropriated property from a workplace and, in particular, you misappropriated medications from [the Facility], including:

a. Acetaminophen;

b. Diazepam;

c. Furosemide;

d. Seroquel;

e. Quetiapine;

f. Loperamide;

g. Advil; and/or

h. Lorazepam.

3. You have committed an act or acts 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 paragraph 1.7 of Ontario Regulation 799/93 in that, while working as a Registered Practical Nurse at [the Facility] in [ ] Ontario, you abused a client verbally, physically or emotionally and, in particular:

a. between approximately March 2013, shortly after [Client A] was discharged as an in-patient from [the Unit] at [the Facility], and September 2013 you engaged in a personal, romantic and sexual relationship with [Client A] and, in so doing, took advantage of [Client A] while [Client A] was in a vulnerable state;

b. between approximately March 2013, shortly after [Client B] was discharged as an in-patient from [the Unit] at [the Facility], and June 2013, while staying at the apartment [Client B] shared with [Client A], you:

i. stared at [Client B] in an intimidating manner;

ii. [Withdrawn];

iii. showed [Client B] how to do neck exercises that you knew could be harmful to [Client B] due to the pinched nerves in [Client B’s] neck;

iv. [Withdrawn];

v. [Withdrawn]; and/or

vi. grabbed and/or squeezed [Client B’s] arm in an effort to take [Client B’s] phone;

c. [Withdrawn]; and/or

d. between approximately March 2013, shortly after [Client A] and [Client B] were discharged as in-patients from [the Unit] at [the Facility] and September 2013, you made comments to [Client A] about wanting to harm [Client B].

4. You have committed an act or acts 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, between approximately March 2013, not long after [Client A] was discharged as an inpatient from [the Unit] at [the Facility] where you worked as a Registered Practical Nurse, and September 2013, you sexually abused [Client A] and, in particular, you had sexual intercourse with [Client A] repeatedly during this time frame.

5. You have committed an act or acts 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 paragraph 1.37 of Ontario Regulation 799/93 in that, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional and, in particular:

a. between approximately March 2013, not long after [Client A] was discharged as an in-patient from [the Unit] at [the Facility] where you worked as a Registered Practical Nurse, and September 2013, you pursued a personal, romantic and/or sexual relationship with [Client A];

b. between approximately March and September 2013, while working as a Registered Practical Nurse at [the Facility] in [ ] Ontario, you stole medications from [the Facility];

c. between approximately March 2013, not long after [Client A] was discharged as an in-patient from [the Unit] at [the Facility] where you worked as a Registered Practical Nurse, and September 2013 you provided [Client A] with medications you had taken from [the Facility], including Acetaminophen, Diazepam, Furosemide, Seroquel, Quetiapine, Loperamide, Advil, and/or Lorazepam, in circumstances where you knew or ought to have known that [Client A] was taking the medications and this was not consistent with what [Client A] had been prescribed;

d. between approximately March 2013, not long after [Client A] was discharged as an in-patient from [the Unit] at [the Facility] and September 2013, you advised [Client A] regarding which medications [Client A] should and/or should not be taking and/or the appropriate dose;

e. [Withdrawn];

f. between approximately March 2013, shortly after [Client B] was discharged as an in-patient from [the Unit] at [the Facility], and June 2013, while staying at the apartment [Client B] shared with [Client A], you acted in an intimidating and/or aggressive manner towards [Client B]; and/or

g. between approximately March 2013, shortly after [Client A] and [Client B] were discharged as in-patients from [the Unit] at [the Facility], and September 2013, you expressed a desire to physically harm [Client B].

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a), (b), (c), (d), (e), (f), (g), (h), (i)(ii), (k), (l); 2(a), (b), (c), (d), (e), (f), (g), (h); 3(a), (b)(i), (b)(iii), (b)(vi), (d); 4; and 5(a), (b), (c), (d), (f) and (g) in the Amended Notice of Hearing. The panel received a written plea inquiry which was signed by the Member. The panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College and the Member advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads as follows. The Agreed Statement of Facts is reproduced in these reasons without the appendices referred to therein.

THE MEMBER

1. Albert Kwan (the “Member”) obtained a diploma in nursing [ ] in 2004.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) in the General Class in October 2004.

3. The Member was employed at [the Facility] as an RPN in the General Class from October 2004 until September 10, 2013, when he resigned as a result of the incidents described below.

THE FACILITY

4. The Member worked at [a facility] in [ ] Ontario.

5. Since 2006 and during the relevant times, the Member was working on [the Unit] and [an inpatient treatment program (“the Program”)] of [the Facility’s] Addictions Program on six week rotations.

6. [The Unit] assists clients with medically withdrawing from addictive substances through a combination of services including benzodiazepine tapering and pharmacotherapy, as well as group therapy and individual counselling.

7. [The Program] is an inpatient addictions and concurrent disorder treatment service for adults with moderate to severe alcohol and/or substance dependence and mild to moderate mental health challenges. It offers a three-week cycle of inpatient care delivered by an interdisciplinary team though goal planning, relapse prevention, medication management, psycho-education, recreation and stress management activities in group and individual sessions. Treatment focuses on problem identification, coping, skills development and maintaining a healthy lifestyle within a harm reduction framework.

8. It is not unusual for clients to attend [the Unit] to detoxify before entering [the Program].

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

[Client A]

[The Facility]

9. [Client A] was admitted to [the Unit] [in] December 2012 for medical detox. [Client A’s] admitting diagnosis at that time was opioid and benzodiazepine dependence, general anxiety disorder and anorexia nervosa (restricting type).

10. This was not [Client A’s] first involvement with [the Facility]. [Client A] had a fairly extensive history with the facility relating to diagnoses for anxiety, depression, substance abuse (cocaine, alcohol, opioids, sedatives) and an eating disorder [ ].

11. At the time of [Client A’s] admission, [Client A] had been taking approximately fifty tablets of Robaxacet with 8mg of codeine per day, for the past six years, in addition to [Client A’s] prescription for Diazepam 10 mg tid and [ ] occasional consumption of Tylenol 4s, which [Client A] purchased off the internet or when in the United States.

12. [Client A] completed [the Unit’s] detox program [in] January 2013 and entered [the Program] the following day. [Client A] was discharged from [the Program] [in] January 2013.

13. The Member met [Client A] while [Client A] was on [the Unit] between December [ ] 2012 and January [ ] 2013.

14. On December 31, 2012, the Member asked [Client A] to accompany him on an errand and took [Client A] off facility grounds to purchase cigarettes, even though [Client A’s] care plan included smoking cessation and [Client A] had been prescribed and was using nicotine patches and gum. Taking a client offsite to assist an RPN in running errands was contrary to [the Facility’s] policy.

15. [Client A] felt that the Member provided special treatment to [Client A] while [Client A] was in [the Program]. For example, the Member left a post-it note on [Client A’s] door after a shift he had worked which said “sorry I missed you ☹”. The Member would also find [Client A] to give [Client A] lunch if [Client A] had missed it and would take [Client A] into private rooms to talk to [Client A] about things. According to [Client A], the Member said things to [Client A] towards the end of the program like “I am going to miss you” and told [Client A] that he had looked [Client A] up on the internet [ ]. By the end of [Client A’s] stay, [Client A] felt that the Member had a crush on [Client A]. This observation was shared by other clients who had told [Client A] that they thought the Member liked [Client A] and they were going to be a couple.

16. Shortly before [Client A] was discharged from [the Facility], the Member indicated that if [Client A] left [Client A’s] phone number on the table, he may find it and call [Client A] after [Client A] was discharged. [Client A] felt uncomfortable leaving [Client A’s] phone number but did, in fact, do so because:

• [Client A] trusted the Member;

• he had been so nice to [Client A] during [Client A’s] time at [the Facility];

• [Client A] had been very dependent on him during [Client A’s] time at [the Facility]; and

• he had helped [Client A] the most during [Client A’s] time at [the Facility] and [Client A] had become very reliant on him.

17. The Member provided direct nursing care to [Client A] while [Client A] was in [the Unit] and [the Program].

Relationship with the Member

18. [Client A] had a one-bedroom apartment, which was in [Client A’s] name but which [Client A] shared with [Client A’s parent, Client B]. [Client A] returned to this apartment after [Client A] had been discharged from [the Facility].

19. Shortly after [Client A’s] discharge, the Member began texting [Client A] as he wanted to see [Client A]. [Client A] initially made excuses not to see the Member, but eventually gave in and agreed to see him for coffee and breakfast in or about February 2013.

20. In March 2013, the Member asked [Client A] to see a movie with him. [Client A] had assumed that they would go to a movie theatre, but instead, the Member had rented a hotel room to watch a movie. According to [Client A], [Client A] agreed to engage in sexual acts with the Member that day, despite not being ready to do so, because [Client A] felt obligated in light of all that the Member had done for [Client A].

21. Subsequently, between March and June 2013, the Member frequently stayed at [Client A’s] apartment. This caused [Client A] and [Client B] to fight.

22. The police were called on two occasions. The first time, [Client B] called the police to have the Member removed from the apartment, but the Member left before the police arrived.

23. The second time, [Client B] had taken pictures of the Member’s car and tried to take pictures of the Member in order to report the Member’s relationship with [Client A] to [the Facility]. The Member grabbed [Client B’s] hand and/or arm to remove the phone from [Client B’s] hand and [Client B] reported this to the police.

24. According to [Client A], the Member actively promoted conflict between [Client A] and [Client B] between March and June 2013. For example, the Member manipulated [Client A] into believing that contact with [Client B] was bad and that [Client A], instead, needed the Member. [Client A] believed the Member because [Client A] was in a very vulnerable state.

25. The Member also discussed with [Client A] the idea of killing [Client B]. Although [Client A] did not take the Member seriously, in this regard, the Member sent [Client A] text messages where he discussed his desire to harm [Client B].

26. Around the end of June, beginning of July 2013, [Client A] told [Client B] that [Client B] would have to leave the apartment and the Member moved in. The Member began paying half of [Client A’s] monthly rent at this time.

Residing with the Member

27. During the time that the Member and [Client A] lived together, between approximately March and September 2013, the Member made suggestions to [Client A] regarding which medications [Client A] should be taking and/or the appropriate dose, including suggestions that [Client A] should:

• taper off Gabapentin and Suboxone;

• take extra Diazepam whenever [Client A] was having an anxiety attack;

• continue to take Quetiapine; and

• take Seroquel when [Client A] decided that [Client A] wanted to taper [Client A’s] Diazepam use.

28. During the same timeframe, the Member provided [Client A] with Diazepam (used to treat anxiety), Seroquel (used to treat depression), Lorazepam (used to treat anxiety), Tylenol, Advil, Furosemide (a diuretic sometimes used for weight loss), Quetiapine (an antipsychotic) and Loperamide (an anti-diarrheal). He had misappropriated these drugs from [the Facility] and [Client A] grew dependent on the Member to provide [Client A] with these medications.

29. The Member’s recommendations regarding [Client A’s] medications and the medications that he was providing [Client A] from [the Facility] were not consistent with what [Client A] had been prescribed by [Client A’s] treating physician. For example, [Client A’s] reliance on Diazepam was the subject of considerable concern on the part of [Client A’s] prescribing physician, who was making a concerted effort to taper [Client A’s] dose at the time the Member was supplying [Client A] with additional tablets.

30. In addition, [Client A] had not been prescribed Quetiapine and Loperamide post-discharge and had never been prescribed Furosemide.

31. The Member lived with [Client A] until approximately September 6 or 7, 2013, when they had an argument that resulted in their breakup shortly thereafter.

32. Just after the argument, when [Client A] recognized that their relationship was ending, [Client A] asked the Member to bring [Client A] more medications from [the Facility], which he did.

33. In mid-September, after the relationship between the Member and [Client A] had ended, [the Facility] discovered how much additional Diazepam [Client A] had been taking and encouraged [Client A] to return to [the Facility] for inpatient detox treatment.

Impact of the Relationship on [Client A]

34. Between March and September 2013, the Member engaged in a personal, romantic and sexual relationship with [Client A], which included having sexual intercourse with [Client A] on multiple occasions.

35. According to [Client A], [Client A] became totally reliant on the Member once he moved into [Client A’s] apartment; including being psychologically reliant on his advice, physically reliant on the medications he was providing [Client A] and financially reliant on the Member paying half of the rent.

36. On September 9, 2013, [Client A] advised the police that [Client A] was distressed because [Client A] felt that [Client A] could not contact [Client A’s] psychiatrist at [the Facility] for fear of exposing the Member, even though [Client A] was emotional and needed to speak to [Client A’s] physician.

37. If [Client A] were to testify, [Client A] would say that [Client A’s] relationship with the Member had a significant negative impact on [Client A’s] mental, physical and emotional well-being as well as [Client A’s] relationship with [Client B]. [Client A] would say that the incidents described above were traumatic and had a devastating impact on [Client A’s] self-esteem and [ ] recovery, including [Client A’s] ability to contact and/or trust [the Facility] staff.

[Client B]

[The Facility]

38. [Client B] was admitted to [the Unit] [in ] December 2012. [Client B’s] admitting diagnosis was opioid and benzodiazepine dependence.

39. At the time of [Client B’s] admission, [Client B] had been abusing codeine for approximately 30 years and was then taking between 30-50 tablets of Robaxacet with 8 mg of codeine daily. [Client B] had also been consuming approximately 40 mg of Diazepam on a daily basis for the past ten years. Although [Client B] had previously abused alcohol, [Client B] had successfully self-detoxed [ ] and not consumed since that time. [Client B] also had a history of disordered eating behaviours and depression, including a suicide attempt [ ].

40. The Member provided nursing care to [Client B] during [Client B’s] eight-day stay on [the Unit].

41. [Client B] was discharged from [the Unit] [ ], without having completed [ ] treatment.

Relationship with the Member while Residing with [Client A]

42. In early June 2013, while [Client B] was living with [Client A], the Member showed [Client B] neck exercises when [Client B] indicated that [Client B] suffered from pinched nerves. The exercises were purportedly to help [Client B’s] pinched nerves but [Client B] found that doing the exercises made [Client B’s] neck sore and the Member was aware that these neck exercises could have been harmful to [Client B].

43. Between March 2013 and June 2013, when the Member was at the apartment [Client B] shared with [Client A], the Member engaged in conduct that made [Client B] feel intimidated and/or uncomfortable. For example, the Member would stare at [Client B] in an intimidating manner.

44. Around June 20, 2013, [Client B] reported the Member’s relationship with [Client A] to a nurse at [the Facility]. The nurse asked [Client B] if it would be possible to obtain proof of the relationship, and more specifically, a picture of the Member’s car parked at [Client A’s] apartment. [Client B] took pictures of the Member’s car, but when [Client B] went to take a picture of the Member sitting on the couch in the apartment, he jumped up and grabbed [Client B’s] arm. When [Client B] would not let go of the phone, the Member dug his nails into [Client B’s] wrist and squeezed, bruising [Client B]. [Client A] took the phone from [Client B] and gave it to the Member. [Client B] called 911 to advise that [Client B] had been attacked by the Member.

45. When the relationship between [Client B] and [Client A] had deteriorated significantly by late June/early July 2013, [Client A] asked [Client B] to leave the apartment. [Client B] had no other place to go and was forced to live in the park across the street.

BREACH OF THE STANDARDS OF PRACTICE AND ABUSE

46. The College retained [an expert] to provide an expert opinion regarding the Member’s conduct and, specifically, whether:

a. the Member had a psychotherapeutic relationship with [Client A] and/or [Client B];

b. various aspects of the Member’s conduct contravened or failed to meet the standards of practice of the profession;

c. various aspects of the Member’s conduct towards [Client A] and/or [Client B] would constitute physical, emotional and/or verbal abuse;

d. the Member sexually abused [Client A] for the purposes of the standards of practice and for the purposes of s. 1(3) of the Health Professions Procedural Code (the “Code”); and

e. the Member’s conduct would reasonably be regarded by members of the profession, having regard to all the circumstances, as disgraceful, dishonourable or unprofessional.

47. [The Expert] was provided with a “hypothetical” set of facts upon which to base her opinion, which closely follows the facts set out in this Agreed Statement of Facts. [ ]

48. In summary, [the Expert] opined that the Member had a psychotherapeutic relationship with both [Client A] and [Client B]. The Member breached standards of practice: when he asked [Client A] to accompany him to purchase cigarettes for [Client A]; when he asked [Client A] to leave [Client A’s] phone number; when he asked [Client A] to go for coffee shortly after [Client A’s] discharge; when he engaged in a romantic relationship with [Client A]; when he engaged in a sexual relationship with [Client A]; when he frequently stayed at the apartment [Client A] and [Client B] shared; when he lived with [Client A] and paid half [Client A’s] rent; when he provided [Client A] with a number of medications and made suggestions regarding which ones to take and the appropriate dosage; when he entered into a personal relationship with [Client B] by staying at the apartment; and when he expressed a desire to physically harm [Client B].

49. [The Expert] was also of the view that engaging in a personal, romantic and sexual relationship with [Client A] was emotional abuse. [The Expert] opined that staring at [Client B] in an intimidating manner was emotional abuse as was expressing a desire to physically harm [Client B], showing [Client B] neck exercises he knew could be harmful was physical abuse and grabbing and/or squeezing [Client B’s] arm to take [Client B’s] phone was physical abuse.

50. [The Expert] further opined that the Member sexually abused [Client A] when he had sexual intercourse with [Client A] between March 2013 and September 2013. It should have been clear to the Member that [Client A] had long-term and chronic mental health issues such that [Client A] still required care from [the Facility] and was still a “patient” in terms of requiring continued psychiatric care.

51. Finally, [the Expert] opined that pursuing a personal, romantic and/or sexual relationship with [Client A], stealing medications from [the Facility], providing medications to [Client A] inconsistent with what [Client A] had been prescribed, advising [Client A] of which medications [Client A] should and/or should not be taking, acting in an intimidating and/or aggressive manner towards [Client B] and expressing a desire to physically harm [Client B] would reasonably be regarded by members of the profession as dishonourable, disgraceful and unprofessional.

THE MINISTER’S TASK FORCE ON SEXUAL ABUSE

52. In December 2014, the Minister of Health and Long-Term Care for Ontario, the Honourable Dr. Eric Hoskins, established “the Minister’s Task Force on the Prevention of Sexual Abuse of Patients and the Regulated Health Professions Act, 1991”.

53. Minister Hoskins asked the Task Force to examine and to provide him with advice and recommendations on how best to strengthen the sexual abuse provisions in the Regulated Health Professions Act, 1991. The Minister [issued a] news release setting out the mandate of the Task Force and [sent a] letter to the health regulatory colleges announcing the Task Force [ ].

ADMISSIONS OF PROFESSIONAL MISCONDUCT

54. The Member acknowledges and agrees that the independent expert retained by the College has the requisite training, knowledge and experience to provide the opinion and accepts the opinion.

55. The Member further acknowledges and agrees that the following College Standards of Practice were in place at the time of the conduct at issue and reflect the standards expected of a nurse at that time:

a. Therapeutic Nurse Client Relationship [ ]; and

b. Professional Standards, Revised 2002 [ ].

56. The Member admits that, prior to entering into a personal relationship with [Client B], he did not consider whether this would have a negative impact on [Client B] and did not consider the likelihood of [Client B] requiring ongoing care from or readmission to [the Facility].

57. The Member admits that, prior to entering into a personal, romantic and sexual relationship with [Client A], he did not consider whether this would have a negative impact on [Client A] and did not consider the likelihood of [Client A] requiring ongoing care from or readmission to [the Facility].

58. The Member further admits that [Client A] and [Client B] were “clients” for the purposes of the Therapeutic Nurse-Client Relationship Standard and for the purposes of s. 1(7) of Ontario Regulation 799/93 insofar as:

a. both had long-standing histories of receiving care for addictions and mental health issues, including from [the Facility];

b. both had received psychotherapeutic care from the Member as a member of the inter-disciplinary care team for [the Program] and on [the Unit];

c. the Member pursued and engaged in a personal, romantic and sexual relationship with [Client A] within weeks of [Client A’s] discharge from [the Facility] and engaged in a personal relationship with [Client B] within months of [Client B’s] discharge from [the Facility]; and

d. the nature of the Member’s respective relationships with [Client A] and [Client B] was such that it was reasonably foreseeable the Member’s conduct towards [Client A] and [Client B] could have a negative impact on their wellbeing and/or impact their future care.

59. The Member admits that he breached the standards of practice of the profession with respect to [Client A] and [Client B] by:

a. accompanying [Client A] to the store to purchase cigarettes, contrary to [Client A’s] care plan and/or in circumstances where [Client A] was prescribed and using Nicotine patches and Nicotine gum;

b. asking [Client A] to leave him [Client A’s] phone number with the intention of contacting [Client A] after [Client A] was discharged;

c. contacting [Client A] shortly after [Client A] was discharged as an inpatient and asking [Client A] to go for coffee;

d. engaging in a romantic relationship with [Client A] shortly after [Client A] was discharged as an inpatient;

e. engaging in a sexual relationship with [Client A] shortly after [Client A] was discharged as an inpatient;

f. frequently staying over at the one-bedroom apartment, which [Client A] and [Client B] were sharing, shortly after [Client A] was discharged as an inpatient;

g. living with [Client A] and paying half of [Client A’s] rent;

h. providing [Client A] with medications he had taken from [the Facility] in circumstances where he knew that [Client A] was taking the medications and this was not consistent with what [Client A] had been prescribed;

i. interfering with the advice [Client A] had received from [Client A’s] treating physicians regarding [Client A’s] medications by making suggestions to [Client A] about which medications [Client A] should and/or should not be taking and/or the appropriate dose;

j. entering in a personal relationship with [Client B] shortly after [Client B] was discharged as an inpatient; and

k. expressing a desire to physically harm [Client B] shortly after [Client B] and [Client A] were discharged as inpatients.

60. The Member admits that he misappropriated medication from [the Facility], including Acetaminophen, Diazepam, Furosemide, Serqouel, Quetiapine, Loperamide; Advil and/or Lorazepam.

61. The Member admits that he abused [Client A] and [Client B], and specifically, that he:

a. abused [Client A] emotionally when he engaged in a personal, romantic and sexual relationship with [Client A] and when he made comments to [Client A] about wanting to harm [Client B], and in so doing, took advantage of [Client A] while [Client A] was in a vulnerable state;

b. abused [Client B] emotionally when he stared at [Client B] in an intimidating manner; and

c. abused [Client B] physically when he showed [Client B] how to do neck exercises that he knew could be harmful to [Client B] due to the pinched nerves in [Client B’s] neck and when he grabbed and/or squeezed [Client B’s] arm in an effort to take [Client B’s] phone.

62. The Member further admits that he entered into a personal, intimate and sexual relationship with [Client A], which involved repeated acts of sexual intercourse and that this constitutes not only a breach of the standards of practice of the profession but also constitutes sexual abuse of a “patient”, as that term is defined in s. 1(3) of the Code and for the purposes of s. 51(1)(b.1) and 51(5) of the Code.

63. The Member admits that he engaged in conduct relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional when he:

a. pursued a personal, romantic and/or sexual relationship with [Client A];

b. stole medications from [the Facility];

c. provided [Client A] with medications he had taken from [the Facility], in circumstances where he knew that [Client A] was taking the medications and this was not consistent with what [Client A] had been prescribed;

d. advised [Client A] regarding which medications [Client A] should and/or should not be taking and/or the appropriate dose;

e. acted in an intimidating and/or aggressive manner towards [Client B] while staying at the apartment [Client B] shared with [Client A]; and

f. expressed a desire to physically harm [Client B].

64. The Member admits that he committed the acts of professional misconduct as described above and as alleged in the following paragraphs of the Notice of Hearing:

• 1(a), (b), (c), (d), (e), (f), (g), (h), (i)(ii), (k) and (l);

• 2(a), (b), (c), (d), (e), (f), (g) and (h);

• 3(a), (b)(i), (b)(iii), (b)(vi) and (d);

• 4; and

• 5(a), (b), (c), (d), (f) and (g), in that the conduct was disgraceful, dishonourable and unprofessional.

OTHER

65. With leave of the Panel of the Discipline Committee, the College withdraws the following particulars: paragraphs 1(i)(i), 1(j), 3(b)(ii), 3(b)(iv), 3(b)(v), 3(c) and 5(e).

Decision

The panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), (b), (c), (d), (e), (f), (g), (h), (i)(ii), (k), (l); 2(a), (b), (c), (d), (e), (f), (g), (h);3(a), (b)(i), (b)(iii), (b)(vi), (d); 4; and 5(a), (b), (c), (d), (f) and (g) of the Amended Notice of Hearing.

As to allegation #5, the panel finds that the Member engaged in conduct that would reasonably be considered by members to be disgraceful, dishonourable and unprofessional.

Reasons for Decision

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

Allegation #1 in the Notice of Hearing is supported by paragraphs

• 1(a) was supported by paragraph 14

• 1(b) was supported by paragraph 16

• 1(c) was supported by paragraph 19

• 1(d) was supported by paragraph 21,34

• 1(e was supported by paragraph 20,34

• 1(f) was supported by paragraph 21

• 1(g) was supported by paragraph 26

• 1(h) was supported by paragraph 27,28,29

• 1(i)(ii) was supported by paragraph 29

• 1(k) was supported by paragraph 21

• 1(l) was supported by paragraph 25

in the Agreed Statement of Facts.

Allegation #2 in the Notice of Hearing is supported by paragraphs

• 2(a)(b)(c)(d)(e)(f)(g)(h) by paragraph 28 in the Agreed Statement of Facts.

Allegation #3 in the Notice of Hearing is supported by paragraphs

• 3(a) was supported by paragraph 34 and 35

• 3(b)(i) was supported by paragraph 43

• 3(b)(iii) was supported by paragraph 42

• 3(b)(vi) was supported by paragraph 44

• 3(d) was supported by paragraph 25

Allegation #4 in the notice of hearing was supported by paragraphs 15,16,19 and 20.

With respect to Allegation # 5, the panel finds that the Member’s conduct was unprofessional and disgraceful in that the Member failed to clearly maintain professional boundaries with [Client A] and [Client B], elevated the relationship immediately after [Client A’s] discharge, undermined and interfered in the [Client A’s] personal relationship with [Client B], and engaged in abusive conduct including sexual abuse of [Client A]. The Member engaged in financial transactions unrelated to the provision of care and services with [Client A] and [Client B]. This behaviour demonstrated a serious and persistent disregard for his professional obligations.

The panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit through misappropriating medications from the workplace and administering them to [Client A] contrary to [Client A’s] treatment plan.

The conduct casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

While this was an uncontested hearing, in order to make findings on allegations #3 and #4 the panel was required to determine whether or not [Client A] and [Client B] were the Member’s clients after they were discharged from the facility. There is no definition of the term “client” or “patient” in the Regulated Health Professions Act or the Health Professions Procedural Code. In the Agreed Statement of Facts, the panel was provided with published Standards of Practice of the nursing profession, including the Therapeutic Nurse-Client Relationship Standard, Revised 2006. That standard does not expressly define the term “client”. However, page 9 of the standard, which deals with protecting the client from abuse, lists various relevant indicators of how nurses meet this standard. Indicators 4(d), (e), (f) and (g) are relevant to this case. [Client A’s] and [Client B’s] admissions to the facility were psychotherapeutic in nature and that relationship continued after their discharge. The Member failed to uphold the standard and failed to protect [Client A] and [Client B] from abuse by engaging in a personal friendship, romantic relationship and sexual relationship with [Client A] without first considering the potential negative impact on [Client B] and [Client A]. The Member did not wait the one year cited in the standard, and did not consider the vulnerabilities and the likelihood of readmissions in the future. [Client A] was receiving ongoing care through a post-discharge treatment plan. [Client A] felt as though [Client A] could not contact [Client A’s] psychiatrist for fear of exposing the Member even though [Client A] was emotional and needed to speak to [Client A’s] physician. [Client A’s] relationship with the Member had a negative impact on [Client A’s] self-esteem and [ ] recovery, including [Client A’s] ability to contact and trust facility staff.

The panel was provided with a book of authorities relevant to the issue of what constitutes a “client” or “patient”. The authorities cited included Mussani v. College of Physicians and Surgeons (2004), 2004 48653 (ON CA), 74 O.R. (3d) 1 (C.A.). At paragraph 66, the Court of Appeal agreed with the statement that: “where to the extent that ‘patienthood’ is not obvious in a given circumstance, it is a factual inquiry that is subject to interpretation by the tribunals and the courts…”

In this case, the Member’s own admission was that [Client A] and [Client B] were clients. There is uncontradicted evidence in the Agreed Statement of Facts from a nursing expert who gave the opinion that the relationships were nurse-client relationships even after the clients’ discharge. There was evidence of continuing care.

The panel finds that at the time of the misconduct there was a continuing psychotherapeutic nurse-client relationship with [Client A] and [Client B]. Accordingly, the evidence supports the findings of misconduct as alleged in the Amended Notice of Hearing.

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

Chairperson Date

Panel Members:

Winsome Plummer, RN

Laura Sanderson, RPN

Cathy Ward, Public Member

Chuck Williams, Public Member