College of Nurses of Ontario v. Hawil, 2016 ONCNO 104248

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: TAMMY HEDGE, RPN Chairperson DAVID EDWARDS, RPN Member MARY MACMILLAN-GILKINSON Public Member DONNA ROTHWELL, RN Member CATHY WARD Public Member

BETWEEN:

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

• and -

AYCHA HAWIL Registration No. JJ03699 ANN MARIE TULLET for Aycha Hawil

Heard: November 28, 2016

AMENDED DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on November 28, 2016 at the College of Nurses of Ontario (“the College”) at Toronto.

Publication Ban:

College Counsel requested a publication ban on the identity of the Client referred to in this hearing and any information that could disclose the identity of the Client. The Panel granted this request.

The Allegations

The allegations against Aycha Hawil (the “Member”) as stated in the Notice of Hearing dated September 1, 2016 are as follows:

IT IS ALLEGED THAT:

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

a. between March and April, 2014, you failed to maintain the boundaries of the therapeutic nurse-client relationship in respect of [the Client]; and/or

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at the 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. between March and April, 2014, you failed to maintain the boundaries of the therapeutic nurse-client relationship in respect of [the Client].

Member’s Plea

The Member admitted the allegations as set out in paragraphs numbered 1(a) and 2(a). 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 admissions were 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. Aycha Hawil (the “Member”) obtained a Certificate in nursing from the [the School Board] in 1999.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on November 10, 1999. The Member resigned from the College on August 31, 2015, while under investigation by the College with respect to this matter.

3. The Member was employed at [the Hospital] from July 31, 2000 to July 22, 2015, when his employment was terminated as a result of the incident described below.

THE HOSPITAL

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

5. The Member worked on [the Unit], as a full-time staff nurse on rotating 24-hour shifts.

6. The Unit was a 28-bed unit with adult male and female clients, ranging from 18-65 years old, suffering from mood disorders, such as depression.

THE CLIENT

7. [The Client] was 40 years old at the time of the incident.

8. She was admitted to the Unit on January 10, 2014, following a suicide attempt and a month long stay in another psychiatric facility.

9. The Client had a longstanding history of depression, with episodes of severe depression, substance use, Dependent Personality Disorder and Borderline Personality Disorder.

10. She had been admitted to the Hospital, as well as another psychiatric facility, several times before the 2014 admission to the Unit. Prior to 2014, she was also followed by the Hospital as an outpatient.

11. The Client remained in the Hospital until she was discharged on March 10, 2014.

12. Upon discharge, the Client turned down outpatient services from the Hospital, and indicated she would be followed by her family physician.

13. The Client then moved to [ ], Ontario.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

14. During the Client’s admission to the Hospital, between January and March, 2014, the Member was the Client’s assigned nurse on 14 shifts. He also worked several shifts on the Unit when the Client was assigned to another nurse.

15. The Member made entries in the Client’s chart on nine occasions. He was her nurse in a psychotherapeutic relationship.

16. Prior to the Client’s discharge on March 10, 2014, the Member asked the Client for, and obtained, her telephone number.

17. In late April 2014, approximately six weeks after the Client was discharged from the Hospital, the Member called the Client and arranged to meet her in [ ]. The Member took the Client to Tim Horton’s for a coffee. They then went out to lunch at a buffet restaurant.

18. After lunch, the Member and the Client checked in to a motel where they spent approximately an hour together. During that time, the Member had sex with the Client.

19. After they had sex, the Member drove the Client home and provided her with $50 to buy cigarettes.

20. The Member tried calling the Client several times afterwards but she did not answer or respond.

21. The Client reported the incident to the Hospital in July 2015 because she was fearful that if she came back to [ ] and needed hospitalization, the Member might be her nurse. The Hospital assured her that would not happen. However, when the Client subsequently sought care at the Hospital, the health care team determined that the Client should not be re-admitted to the Hospital; given the Member’s prior association with the Hospital and the Client’s care, the team felt a return to the Hospital would not be therapeutic for the Client. Therefore, she lost her continuity of care as a result of the Member’s conduct.

22. The Member acknowledges that the Client was extremely vulnerable and he admits that he entered into a personal and sexual relationship with her, which started when he asked the Client for her telephone number.

23. The Member also acknowledges that his personal and sexual relationship with the Client only developed because of the nurse-client relationship and the trust and intimacy involved.

COLLEGE STANDARDS

24. The College’s Therapeutic Nurse-Client Relationship Standard (“the Standard”) places the responsibility for establishing and maintaining the limits or boundaries in the therapeutic nurse-client relationship on the nurse.

25. The Standard states:

[c]rossing a boundary means that the care provider is misusing the power in the relationship to meet his or her personal needs rather than the needs of the client, or behaving in an unprofessional manner with the client.

26. The Standard further clarifies that a nurse may cross a boundary in a number of different ways, including:

• self-disclosure that does not meet a specified therapeutic client need;
• failing to ensure that the nurse-client relationship promotes the well-being of the client and not the needs of the nurse;
• giving gifts to the client or engaging in other behaviour that suggests a special relationship between the nurse and the client; and
• entering into a personal or romantic relationship with a client

27. The Standard also sets out that the nurse’s role in protecting a client from abuse extends beyond the termination of the therapeutic relationship. It says a nurse meets the Standard by:

…ensuring that after the nurse-client relationship has been terminated and the nature of the relationship has been psychotherapeutic or for the provision of intense psychosocial counselling, the nurse:

• must not engage in a personal friendship, romantic relationship or sexual relationship with the client or the client’s significant other for one year following the termination of the therapeutic relationship, and…

ADMISSIONS OF PROFESSIONAL MISCONDUCT

28. The Member admits that his relationship with the Client, as described above in paragraphs 14 to 23, breached the College’s Therapeutic Nurse-Client Relationship Standard as alleged in allegation 1(a) of the Notice of Hearing.

29. The Member also admits that he committed the acts of professional misconduct as alleged in paragraphs 2(a) of the Notice of Hearing, and in particular, obtaining the Client’s phone number, initiating a relationship and having sex with the Client was disgraceful, dishonourable and unprofessional, as described in paragraphs 14 to 23 above.

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 in the Notice of Hearing is supported by paragraphs 16-20 and 24-27 in the Agreed Statement of Facts.

Allegation #2 in the Notice of Hearing is supported by paragraphs 16-23 in the Agreed Statement of Facts.

With respect to Allegation # 2(a), the Panel finds that the Member’s conduct was unprofessional in that he failed to maintain the professional boundaries of a therapeutic nurse-client relationship. He demonstrated a lack of good judgement when he asked for [the Client]’s phone number while she was still a client. He then pursued her romantically and sexually after she had been discharged. This behaviour demonstrates a serious and persistent disregard for his professional obligations.

The Member knew [the Client]’s complex medical history and was aware of the suicide attempt which brought her to the [Unit] at the Hospital. It is dishonourable that the Member used the guise of a nurse-client relationship to target [the Client] who was already in such a vulnerable state.

Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The Member’s actions have caused a lasting, negative impact on [the Client]. She is now unable to access the services of the Hospital where the Member once worked. Given the events that occurred with the Member, the health care team at the Hospital felt it would not be in her best interests to be re-admitted there. It must be devastating for [the Client] to lose her continuity of care. The Panel believes that [the Client] has been victimized twice. The Member’s conduct casts serious doubt on his moral fitness. The Panel questions the Member’s inherent ability to discharge the higher obligations that are expected of a nursing professional.

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.

Penalty Submissions

Submissions were made by College Counsel. The Member’s representative indicated that she agreed with those submissions.

The parties agreed that the mitigating factors in this case are that the Member chose to accept responsibility for his actions and cooperated with the investigation. He was in attendance at the hearing.

The aggravating factors in this case are the seriousness of the Member’s conduct and its lasting impact on [the Client]. The Member took advantage of the trust and intimacy of the nurse/client relationship. He exploited it to meet his own needs.

The proposed penalty provides for general deterrence as it sends a strong statement to all members of the profession that conduct such as this is not acceptable and will not be tolerated.

Overall, the public is protected because the Member will not be able to practise for at least a year, after which the Member may reapply for reinstatement.

Counsel submitted cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee.

In CNO v. Tomaszewska (Discipline Committee, 2004), the member committed a serious financial breach of trust. That panel revoked the member’s licence and imposed a fine.

In CNO v. Wagner (Discipline Committee, 2012), the member was convicted in the Ontario Court of Justice of a sexual assault on a client. His licence was revoked.

In CNO v. Wood (Discipline Committee, 2012), the member engaged in various sexual acts with a client. The member entered into an Undertaking with the College. He agreed to permanently resign as a member of the College.

After reviewing the cases presented, the Panel believes that revoking the Member’s licence is in line with other decisions and that it protects the public.

Penalty Decision

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

1. The Member shall 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.

Reasons for Penalty Decision

The Panel takes the breach of the client/nurse relationship very seriously. The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has cooperated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for his actions. Nevertheless, this egregious conduct requires revocation. Revocation ensures that this Member will not have the opportunity to engage in this conduct as a practising nurse, thereby protecting the public. The reprimand will provide general deterrence to all members of the profession.

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:

Tammy Hedge, RPN David Edwards, RPN Mary MacMillan-Gilkinson, Public Member Donna Rothwell, RN Cathy Ward, Public Member