College of Nurses of Ontario v. Nightingale, 2016 ONCNO 104247

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Grace Fox, NP Chairperson Renate Davidson Public Member Ashleigh Molloy Public Member George Rudanycz, RN Member Heather Stevanka, RN Member

BETWEEN:

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

• and - )

RICHARD PAUL NIGHTINGALE ) MARK ERTEL for Registration No. 9530809 ) Richard Paul Nightingale

) Heard: NOVEMBER 21, 2016

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on November 21, 2016 at the College of Nurses of Ontario (the “College”) at Toronto.

The College requested and the Panel ordered a publication ban on the disclosure of the Client’s name and identifying information.

The Allegations

The allegations against Richard Paul Nightingale (the “Member”) as stated in the Notice of Hearing dated August 30, 2016 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 while working as a Registered Nurse with [the Program] at [the Hospital], you sexually abused a client, as follows:

a. in or about January 2014, you engaged in physical sexual relations, touching of a sexual nature, or behaviour or remarks of a sexual nature toward [the Client]; and/or

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(37) of Ontario Regulation 799/93, in that while employed as a Registered Nurse at the Hospital, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, as follows:

a. in or about January 2014, you engaged in physical sexual relations, touching of a sexual nature, or behaviour or remarks of a sexual nature toward [the Client].

Member’s Plea

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

Agreed Statement of Facts

Counsel for the College and the member advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads as follows.

THE MEMBER

1. Richard Paul Nightingale (the “Member”) obtained a diploma in nursing from Algonquin College in 1995.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on August 15, 1995. The Member was administratively revoked on March 21, 2016 for non-payment of fees.

3. The Member was employed at [the Program] from May 28, 2012 to April 28, 2015, when he resigned as a result of an agreement with the employer. From March 2014 to the date of his resignation, the Member was on leave and not actively working at the Program.

THE PROGRAM & THE HOSPITAL

4. The Program is located in [ ], Ontario.

5. The Program provides community-based mental health services to adults. In addition to offering services at its office, the Program also works in partnership with [the Hospital] and [another Hospital].

6. The Member worked as a Community Mental Health Nurse, Crisis Services at all three sites, including regular shifts in the Emergency Department at the Hospital [ ].

7. The Hospital is located in [ ], Ontario.

8. Clients are referred to the Program from either the community or through the emergency department of one of the two hospitals.

9. The Member worked as a full-time staff nurse on the day shift. He worked at the Hospital on Mondays, Wednesdays and Fridays.

10. He provided initial face-to-face mental health assessments and crisis support, if needed, to clients. The Member also met with clients on an appointment basis.

THE CLIENT

11. [The Client] was 33 years old at the time of the incident.

12. The Client was first admitted to the Hospital in November 2012 following an overdose. [The Client] met the Member at that time. On June 26, 2013, [the Client] was brought to the Emergency Department with suicidal thoughts, and was assessed by the Member at that time.

13. The Client has a history of childhood sexual abuse, post-traumatic stress disorder, depressive episodes, drug and alcohol abuse, and suicidal ideation.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

14. In July 2013, the Client began regular counselling sessions with the Member as an outpatient, with appointments approximately twice a month. The sessions took place at the Hospital.

15. On January 3, 2014, the Member closed the Client’s crisis counselling file. The Client then returned the same day. The Client and the Member had sexual intercourse on the chair in his office.

16. On January 8, 2014, the Client called the Member and requested an appointment immediately as [the Client] was not doing well. The Member met with the Client. In [the Client]’s progress notes, the Member noted:

I spoke with the client today, [the Client] feels [ ] is decompensating and thinks [ ] needs further crisis counselling.

[The Client] also mentions [ ] has not been taking [ ] medication for a few days now. I instructed [ ] to start taking the Effexor again, today.

This is after the client contacted me last night as well, while working the late shift at [the Hospital].

[The Client] called requesting to meet, I had another client with me at the time, and told [ ] I could meet for a very short time before I finished.

When [the Client] arrived, [ ] appeared upset and teary…

17. The Client met with the Member on two subsequent occasions, January 27 and February 18, 2014, before discontinuing care with the Program.

18. If the Client were to testify, [ ] would say that the Member’s conduct led [ ] on a path of destruction that has ruined [ ] life. Specifically, the Client would say [ ] marriage fell apart, the Children’s Aid Society became involved in [ ] children’s care and [the Client] began drinking heavily as a result of being sexually abused by the Member.

19. On March 6, 2014, the Member was charged with sexual assault under s. 271 of the Criminal Code. The criminal charge was withdrawn on November 18, 2016. The Member voluntarily entered into a s. 810 recognizance (peace bond) to keep the peace and be of good behaviour and to refrain from contacting the Client or communicating with [ ] directly or indirectly.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

20. The Member admits that he sexually abused [the Client] when he engaged in sexual intercourse with [ ] while [ ] was his patient.

21. 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 engaged in sexual intercourse with the Client while [ ] was his patient.

22. 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), and;

• 2(a), in that his conduct was disgraceful, dishonourable and unprofessional.

Decision

The Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a) and 2(a) of the Notice of Hearing. As to allegation 2(a) 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 Notice of Hearing.

Allegation 1(a) in the Notice of Hearing is supported by paragraphs 15, 20 and 22 in the Agreed Statement of Facts.

Allegation 2(a) in the Notice of Hearing is supported by paragraphs 15, 21 and 22 in the Agreed Statement of Facts.

With respect to Allegation 2(a) the Panel finds that the Member’s conduct was unprofessional, dishonourable and disgraceful in that the Member intentionally disregarded his professional obligations and demonstrated an aspect of moral failing by engaging in sexual intercourse with [the Client] while [ ] was his client.

Penalty

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

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

2. Directing the Executive Director to immediately revoke the Member’s certificate of registration.

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

Penalty Submissions

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

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

Counsel provided the Panel with the case CNO v. Kuiken-Rogers (Discipline Committee, 2014) that involved sexual intercourse between a member and a vulnerable client. The penalty in this case included revocation of the member’s certificate, a reprimand, and recovery from the member of up to $5,000 for therapy to the client relating to such abuse.

The Member’s Counsel indicated that he agreed with College Counsel’s submissions.

Penalty Decision

The Panel accepts the Joint Submission as to Order and accordingly orders:

1. The Member is required to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.

2. The Executive Director is directed to immediately revoke the Member’s certificate of registration.

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

Reasons for Penalty Decision

The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for his actions.

The reprimand and revocation of the Member’s certificate of registration were mandatory penalties.

The Panel found that the additional aspect of the Order, i.e. requiring the Member to reimburse the College for funding up to the amount of $5,000 provided for [the Client] should [ ] access the College’s funding program for sexual abuse survivors, is reasonable and in the public interest.

The penalty is in line with what has been ordered in previous cases.

I Grace Fox, NP, 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:

Grace Fox, NP, Chairperson

Renate Davidson, Public Member

Ashleigh Molloy, Public Member

George Rudanycz, RN

Heather Stevanka, RN