College of Nurses of Ontario v. Wanda Elaine Pankhurst, 2015 ONCNO 94642

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Michael Hogard, RPN Chairperson

Spencer Dickson, RN Member Susannah McGeachy, NP Member Renate Davidson Public Member

Rob MacKay Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) NICK COLEMAN for

) College of Nurses of Ontario

• and - )

WANDA ELAINE PANKHURST ) REBECCA STULBERG for Applicant ) Wanda Pankhurst

) LUISA RITACCA

) Independent Legal Counsel

) Heard: August 20, 2015

DECISION AND REASONS FOR DECISION – APPLICATION FOR REINSTATEMENT

This application for reinstatement came before a Panel of the Discipline Committee on August 20, 2015, at the College of Nurses of Ontario (the “College”) at Toronto.

Overview

The [Former Member’s] certificate of registration was revoked pursuant to a decision of the Discipline Committee, dated March 18, 2009. In that decision, the Discipline Committee found the [Former Member] guilty of professional misconduct in that she had engaged in a personal and sexual relationship with a [client]. The [Former Member] admitted the allegations and accepted the revocation. The [Former Member] filed an application for reinstatement on May 5, 2014, over five years after the decision to revoke her certificate was made.

The College did not oppose the application for reinstatement. As set out in the Agreed Statement of Facts and as was made clear to the Panel in submissions, the College was satisfied that reinstatement was appropriate in this case.

The Panel considered the evidence presented and following deliberations, made an order directing the Executive Director to issue a certificate of registration with specified terms, conditions and limitations.

Agreed Statement of Facts

Counsel for the [Former Member] advised the Panel that agreement had been reached on the facts which included a joint position on the reinstatement application, and introduced an Agreed Statement of Facts, [ ] which provided as follows:

THE FORMER MEMBER

1. Wanda Elaine Pankhurst (“Ms. Pankhurst”) obtained a diploma in nursing [ ] in April 1987.

2. Ms. Pankhurst registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) in December 1987. Her certificate of registration was revoked by the Discipline Committee on March 18, 2009.

3. Ms. Pankhurst has applied to the Discipline Committee for reinstatement of her certificate of registration.

PRIOR MISCONDUCT

Allegations Referred to the Discipline Committee

4. The Executive Committee referred the following allegations of professional misconduct against Ms. Pankhurst to the Discipline Committee in a decision dated March 13, 2008:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at [the Agency] in [ ] Ontario, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession with respect to engaging in a personal and/or sexual relationship with [the Client], in or about February-October, 2005.

2. You have committed an act of professional misconduct as provided by sub-section 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and sub-section 1(7) of Ontario Regulation 799/93 in that, while employed as a Registered Nurse at [the Agency] in [ ] Ontario, you abused a client, verbally, physically or emotionally with respect to engaging in a personal and/or sexual relationship with [the Client], in or about February-October 2005.

3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at [the Agency] in [ ] Ontario, 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 of the profession as disgraceful, dishonourable or unprofessional with respect to engaging in a personal and/or sexual relationship with the [Client], in or about February-October 2005.

4. You have committed an act of professional misconduct as provided by subsection 51(1)(b.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that, while employed as a Registered Nurse at [the Agency] in [ ] Ontario, you sexually abused a [Client], in or about February-October 2005.

Discipline Hearing: March 18, 2009

5. On March 18, 2009, Ms. Pankhurst admitted all four allegations and the discipline hearing proceeded by way of Agreed Statement of Facts and Joint Submission on Order.

6. In particular, Ms. Pankhurst admitted that she was assigned to provide homecare to [the Client]. She attended at [the Client’s] home and provided homecare between January 11, 2005 and February 22, 2005, and mid-April 2005 until October 20, 2005. In or around mid-April 2005, Ms. Pankhurst and the Client began going out for coffee together. Their personal relationship escalated, and in August 2005, they engaged in various sexual acts, and in September 2005, they had sexual intercourse. Numerous gifts were exchanged during their relationship.

7. The Panel of the Discipline Committee found that Ms. Pankhurst committed the acts of professional misconduct as alleged, in that the Member engaged in a personal and sexual relationship with [the Client] during the time that she provided nursing care to [the Client].

8. The Panel further accepted a joint submission on order, which included a mandatory oral reprimand and mandatory revocation of Ms. Pankhurst’s certificate of registration.

9. [ ]

APPLICATION FOR REINSTATEMENT

10. On May 5, 2014, Ms. Pankhurst wrote to the College to apply for reinstatement of her certificate of registration.

11. Under ss. 72(3) and 73(1)(a) of the Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Ms. Pankhurst is entitled to apply for reinstatement five years after the date on which her certificate of registration was revoked and the application is to be referred to the Discipline Committee.

12. Since her revocation, Ms. Pankhurst has done the following:

• Completed [a] Pharmacy Technician course [ ] between November 3, 2008 and June 5, 2009, obtaining a Diploma with Honours

• Completed Pharmacy Technician Bridging Courses, including a professional practice course, [ ] between 2011 and 2013

• Successfully completed the Ontario College of Pharmacists’ jurisprudence exam in August 2013

• Completed [an] Ethics and Professionalism course [ ] in fall of 2013, receiving an “A” grade. [ ]

• Successfully completed The Pharmacy Examining Board of Canada’s Pharmacy Technician Qualifying Examination in May 2014

• Successfully completed the College’s jurisprudence exam in May 2014. The exam assesses the [Former Member’s] knowledge and understanding of the nursing profession in Ontario in terms of: nursing regulation, scope of practice, professional responsibility and accountability, ethical practice and the nurse-client relationship

13. Ms. Pankhurst commenced employment at [a Pharmacy] as a Pharmacy Assistant in 2009 and continues to be employed there now.

INDEPENDENT PSYCHIATRIC EVALUATION BY [DR. A]

14. The College and Ms. Pankhurst jointly agreed that [Dr. A] would provide an independent psychiatric evaluation of Ms. Pankhurst for the purpose of her reinstatement application. Attached [ ] is a copy of [Dr. A’s] curriculum vitae.

15. [Dr. A’s] report, dated May 28, 2015.

16. In her meeting with [Dr. A], Ms. Pankhurst indicated that shortly before her involvement with [the Client], she felt distant from her [partner] as he had joined a tribute band and she felt as if she was raising their three children on her own. She indicated that when she began treating [the Client] in January 2005, [the Client] fed into her frustrations with her [partner], indicating [the Client] would not treat her as badly as her [partner]. When her [partner] discovered the relationship in the fall of 2005, [she was] told [ ] to leave the family home. She moved in with [the Client] in the spring of 2006. She felt she had made a mistake almost immediately and [the Client] had become abusive. She then ended the relationship with [the Client], but [the Client] continued to call her and show up at her place of work. In 2007, Ms. Pankhurst attempted to obtain a Peace Bond against [the Client].

17. Ms. Pankhurst advised [Dr. A] that the entire relationship with [the Client] was a “huge mistake,” she knew she “broke a lot of ethical rules” and understood that such a relationship could cause mistrust and undermine the profession. Ms. Pankhurst reflected on what she should have done differently, and has implemented methods to address stress in her life. She also indicated that she wanted to return to nursing as it was “everything” to her.

18. [Dr. A] concluded that Ms. Pankhurst did not appear to suffer from any major mental illness, any overt personality disorder or substance abuse issues. He indicated that her involvement with [the Client] likely reflected emotional vulnerability at a time when she was experiencing significant issues in her relationship with her [partner]. Ms. Pankhurst has been able to repair her relationship with her [partner] and children, retrain in another field, and maintain stable employment, which [Dr. A] opined may be seen as indicators of current stability. [Dr. A] opined that Ms. Pankhurst was at low risk of committing professional misconduct involving sexual abuse of a client.

19. [Dr. A] further opined that Ms. Pankhurst did not require treatment before returning to the practice of nursing and that he did not believe that the degree of perceived risk in this case would be sufficient to deny her readmission to the nursing profession. [Dr. A] went on to state that what risk Ms. Pankhurst does pose could be sufficiently mitigated with the following restrictions on her nursing practice for a period of at least five years:

• No homecare nursing or nursing in an independent setting;

• Other health professionals to be present if Ms. Pankhurst is involved in direct client care;

• Ms. Pankhurst is not to see clients professionally or socially outside of her work environment; and

• Ms. Pankhurst’s supervisor or employer is to be made aware of her previous misconduct and agree to provide supervision/support in the workplace.

POSITIONS ON REINSTATEMENT

20. The College and Ms. Pankhurst agree that her certificate of registration should be reinstated with certain terms, conditions and limitations as set out in the joint submission on order.

Joint Submission on Order

An Agreed Statement of Facts, Book of Documents, and Joint Submission as to Order was presented this day to the Discipline Panel. Having reviewed the materials filed and having heard the submissions of the former member and the College, the Panel makes the following Order:

1. The Executive Director is directed to issue a certificate of registration to Ms. Pankhurst.

2. The Executive Director is directed to impose the following terms, conditions and limitations on Ms. Pankhurst’s certificate of registration when Ms. Pankhurst obtains an active certificate of registration in the practising class:

a) Ms. Pankhurst shall not return to the practice of nursing until she provides proof of completion of the conditions in paragraphs 2(b), (c) and (d) below.

b) Ms. Pankhurst shall, at her own expense, successfully complete, with a minimum passing grade of 65%, relevant nursing course content related to cultural context, computers, technology, pharmacology, practice standards, health assessment, legal/ethical, gerontology and communication;

c) Ms. Pankhurst shall, at her own expense, successfully complete 400 hours of clinical/practical/consolidation experience;

d) Ms. Pankhurst shall attend three meetings with a Nursing Expert (the “Expert”), at her own expense. If the Expert determines that a greater number of sessions are

required, the Expert will advise Ms. Pankhurst and write to the Director regarding the total number of sessions that are required and the length of time required to complete the additional sessions. To comply, Ms. Pankhurst is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by the Director of Professional Conduct (“Director”) in advance of the meetings;

ii. At least seven days before the first meeting, Ms. Pankhurst provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Reinstatement Hearing,

3. the Agreed Statement of Facts (including attachments),

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, Ms. Pankhurst reviews the following College publications and completes the associated Reflective Questionnaires, online learning modules and online participation forms (where applicable):

1. Professional Standards, and

2. Therapeutic Nurse-Client Relationship;

iv. Before the first meeting, Ms. Pankhurst reviews and completes the College’s self-directed learning package, One is One Too Many, at her own expense, including the self-directed Nurses’ Workbook;

v. At least seven days before the first meeting, Ms. Pankhurst provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms and Nurses’ Workbook;

vi. The subject of the sessions with the Expert will include:

1. the acts or omissions for which Ms. Pankhurst was found to have committed professional misconduct,

2. the potential consequences of the misconduct to Ms. Pankhurst’s clients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vii. Within 30 days after Ms. Pankhurst has completed the last session, Ms. Pankhurst shall ensure that the Expert forwards his/her report to the Director, in which the Expert will confirm:

1. the dates Ms. Pankhurst attended the sessions,

2. that the Expert received the required documents from Ms. Pankhurst,

3. that the Expert reviewed the required documents and subjects with Ms. Pankhurst, and

4. the Expert’s assessment of Ms. Pankhurst’s insight into her behaviour;

viii. If Ms. Pankhurst does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in Ms. Pankhurst breaching a term, condition or limitation on her certificate of registration;

e) When Ms. Pankhurst returns to the practice of nursing after meeting the requirements of paragraph 2(a) above, Ms. Pankhurst shall notify her nursing employers of the decision. To comply, Ms. Pankhurst is required to:

i. Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

ii. Provide her employer(s) with a copy of:

1. the Panel’s Order,

2. the Notice of Reinstatement Hearing,

3. the Agreed Statement of Facts (including attachments),

4. this Joint Submission on Order, and

5. a copy of the Panel’s Decision and Reasons, once available;

iii. Ensure that within 14 days of the commencement or resumption of Ms. Pankhurst’s employment in any nursing position, the employer(s) forward(s) a report to the Director [ ], in which it will confirm:

1. that they received a copy of the required documents,

2. that they agree to provide or to arrange to provide the monitoring required in paragraph 2, and

3. that they agree to notify the Director immediately upon receipt of any information that Ms. Pankhurst has breached the standards of practice of the profession;

f) When Ms. Pankhurst returns to the practice of nursing after meeting the requirements of paragraph 2(a) above, Ms. Pankhurst shall not practise independently in the community and shall only engage in the practice of nursing in a setting where another regulated healthcare practitioner is available to monitor her practice. Each person who monitors Ms. Pankhurst’s practice shall:

i. be a registered nurse or, if approved in advance by the Director, another regulated healthcare practitioner,

ii. be employed at the same facility and be in the facility when Ms. Pankhurst is working,

iii. be aware of Ms. Pankhurst’s discipline history, and

iv. agree to notify the employer immediately if he/she has information that Ms. Pankhurst has breached the standards of practice of the profession;

g) The conditions in paragraphs 2 and 2 shall remain in force for the first five years that Ms. Pankhurst is employed as a nurse after the date of this Order. The conditions will be of no further force and effect at that time, but only if, one month in advance of the anticipated expiry of paragraphs 2 and 2, Ms. Pankhurst provides up-to-date report(s) to the Director from her employer(s) reporting on whether Ms. Pankhurst’s nursing practice has been consistent with the standards of practice; and

h) The Director reserves the right to extend the length of the conditions in paragraphs 2 and 2 if a concern regarding Ms. Pankhurst’s nursing practice is reported to the College by the Nursing Expert and/or her employer(s).

3. All documents delivered by Ms. Pankhurst to the College, the Expert or the employer(s) shall be delivered by verifiable method, the proof of which Ms. Pankhurst will retain.

[Former Member] Submissions on Reinstatement Application

Counsel for the [Former Member] stated that the issue for the Panel to determine is whether the [Former Member] should be permitted to return to the profession and, if so, whether there should be any terms, conditions, and limitations imposed.

Factors that would be relevant to determining reinstatement include:

• The past conduct of the [Former Member] including the sophistication, motivation, surreptitiousness and exploitiveness of the misconduct;

• Evidence of treatment and the future prognosis for the [Former Member];

• Current evidence of good character and rehabilitation; and

• The current competence and skills of the practitioner.

Counsel stated that the [Former Member] was a low risk to repeat the misconduct that had resulted in her original revocation. This position was supported by the findings of the independent psychiatric evaluation, [ ], which the [Former Member] undertook as part of the reinstatement application process. Counsel argued that the [Former Member] has demonstrated insight into the factors that led to her misconduct [and] the impact the misconduct had on others, and has taken responsibility for her actions.

In the intervening years since the revocation, the [Former Member] has pursued additional education in the healthcare sector, most recently successfully completing the licensing exams for Pharmacy Technicians. The [Former Member] has also successfully completed the jurisprudence exam for the College of Nurses of Ontario, which demonstrates that the [Former Member] has an understanding of the current standards of practice of the profession.

Counsel advised that during her period of revocation, the [Former Member] has been consistently employed and is currently a Pharmacy Assistant.

Counsel argued that the [Former Member] has demonstrated insight into her actions, identified the factors that contributed to the original misconduct and corresponding strategies to prevent recurrence, maintained a professional connection with the healthcare field through ongoing development as a Pharmacy Technician and is deemed a low risk to re-offend. In the circumstances, counsel argued that the [Former Member] ought not be prevented from obtaining reinstatement of her certificate. The [Former Member] seeks reinstatement on the basis of conditions and terms that will ensure, among other things, that she upgrades her skills through education and specified clinical practice prior to being registered, and after registration she will be subject to employer notification, restricted from community nursing practice [and subject to] practice monitoring for a period of 5 years, which will be renewable should concerns arise.

In terms of the broader question of the impact of reinstatement upon the public’s perception of the ability of the profession to regulate itself, the [Former Member’s] Counsel stated [given] the circumstances of the case, along with what has been proposed, this will not be an issue.

College Submissions and Reinstatement Application

College Counsel stated that the College supported the application for reinstatement so long as the mutually proposed terms, conditions and limitations were adopted.

College Counsel noted that the [Former Member] has engaged in efforts to rehabilitate herself over a period of years. She has accepted responsibility for her misconduct and demonstrates insight as to the impact of her actions on others. As part of the reinstatement application, the College had requested the independent psychiatric evaluation of the [Former Member]. From the report, College Counsel advised that it was evident that the evaluator met with the [Former Member], reviewed the circumstances and made recommendations related to her reinstatement.

Apart from the report of the independent psychiatric evaluator, College Counsel also stated that the College believes the [Former Member] has also met the requirements for the Panel to allow the application for reinstatement. Specifically, the [Former Member] has applied for reinstatement in writing, the [Former Member] is applying 5 years following revocation, and that the [Former Member] has provided a rational[e] as to why she should be reinstated.

College Counsel stated that the question before the Panel was whether the public would be adequately protected should this [Former Member] be reinstated. The College’s position is that the public would be adequately protected through the terms, conditions and limitations which have been proposed as part of the reinstatement. Public confidence in the ability of the profession to self-regulate itself would be maintained as the reinstatement is based upon a careful consideration of the original misconduct, the subsequent remediation, and terms, conditions and limitations.

Decision

The Panel deliberated and accepted the Joint Submission on Order [ ].

Reasons for Decision

In a reinstatement application, the [Former Member] bears the onus of proving that the public would be protected should they be reinstated as a member of the College. In this case, the Panel identified the following as relevant factors to be considered in this specific application for reinstatement:

• The past conduct of the [Former Member] including the sophistication, motivation, surreptitiousness and exploitiveness of the misconduct;

• Evidence of treatment and the future prognosis for the [Former Member];

• Current evidence of good character and rehabilitation; and

• The current competence and skills of the practitioner.

In this case, the primary source of evidence relied upon by both the [Former Member] and the College in supporting reinstatement was the independent medical report. This report illustrated the basis for the original misconduct, insight of the [Former Member], the strategies she has developed to prevent a recurrence and an overall opinion that the [Former Member] is a low risk to repeat this type of misconduct. While supportive of the [Former Member’s] reinstatement, this was with the caveat of specific terms, conditions and limitations. The Panel found the report to be comprehensive and credible and [one] which the Panel could rely in arriving at a decision.

Apart from the expert report, the Panel also noted that the [Former Member], subsequent to the revocation order, successfully completed the requirements as a Pharmacy Technician, a regulated health profession, which provides the Panel with confidence that the [Former Member] has maintained knowledge in the healthcare field through activities in an allied role. Further, the [Former Member’s] work history, along with the evidence of her successful completion of professionalism and ethics education, demonstrates good character and rehabilitation.

While the Panel supports reinstatement, this support is contingent upon the imposition of the jointly proposed terms, conditions and limitations. The terms, conditions and limitations will ensure that the [Former Member] does not re-enter the practising class prior to demonstrating current competence and that, once practising, [ ] she is suitably monitored for a period of 5 years, which may be renewed in the event that future concerns arise. The Panel concluded that the public would be suitably protected and public confidence in self-regulation maintained with the reinstatement of this Member.

I, Michael Hogard, 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:

Spencer Dickson, RN

Susannah McGeachy, NP

Renate Davidson, Public Member

Rob MacKay, Public Member