College of Nurses of Ontario v. Albert Kwan, 2016 ONCNO 64049

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Tammy Hedge, RPN Chairperson

Winsome Plummer, RN Member Cathy Ward 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: February 1, 2016

AMENDED DECISION AND REASONS ON PENALTY

By way of reasons dated December 7, 2015, this Panel made findings of professional misconduct against Albert Kwan (the “Member”). The Panel found that the Member committed acts of professional misconduct as alleged in the Amended Notice of Hearing, including that the Member engaged in conduct that would reasonably be considered by members of the profession to be disgraceful, dishonourable and unprofessional.

The Panel reconvened on February 1, 2016, at the College of Nurses of Ontario (the “College”) for the penalty hearing. It was noted on record that two members of the Panel had become unavailable to continue on the Panel, but that the Panel still had quorum.

Counsel for the College and the Member advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission requested 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. Requiring the Member to reimburse the College for funding up to the amount of $5,000 provided for [Client A] under the program required by s. 85.7 of the Health Professions Procedural Code, if the client accesses the fund.

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

Penalty Submissions

Submissions were made by College Counsel. The Member made no submissions and indicated he supported the Joint Submission.

The aggravating factors in this case were:

• [Client A] was a vulnerable [client].

• The Member began “grooming” [Client A] while still an inpatient in the facility and this conduct created a “bond” of dependence and trust, which the Member exploited.

• The Member exploited [Client A] almost immediately after [Client A’s] discharge from the facility.

• The Member created a manipulative relationship with [Client A] involving financial, emotional and physical dependence

• [Client A] had a history of addiction. The Member was providing drugs and advised a regime contrary to the physician’s orders.

• The conduct was traumatic for [Client A] in that [Client A] felt unable to contact staff at the facility.

The only mitigating factor would be the consideration that the Member accepted accountability for his actions, and recognized the impact of his conduct, by entering into the agreement with the College, both in the Agreed Statement of Fact and the Joint Submission on Penalty

The proposed penalty provides for general deterrence through:

• The publication of this Decision and Reasons and details on the register;

• The revocation of the Member’s certificate of registration, and

• The allowance of reimbursement for [Client A] to receive therapy, should [Client A] choose, which sends a clear message to the membership at large that the College will not tolerate such conduct.

Overall, the public is protected because the Member is no longer eligible to practise.

Counsel did not submit any cases to the Panel, as the Panel had found that the Member committed professional misconduct in that he committed sexual abuse of a [client], including sexual intercourse. This carries the mandatory penalty of revocation. College counsel did submit, however, that even if the Panel had not made the finding that the Member had sexually abused a [client], the College would have sought revocation regardless.

Both parties agreed that reimbursement for counselling should be ordered, up to a maximum of $5,000. Counsel submitted that under the regulations regarding s. 85.7 of the Code, the maximum amount that can be ordered is in excess of $10,000. Given that the Member has had his certificate suspended since December 11, 2014, and is about to have it revoked, $5,000 is an appropriate amount.

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

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

Reasons for Penalty Decision

The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The Panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

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. The Panel finds that the penalty satisfies the principles of general deterrence, and public protection. The Member is no longer entitled to practise and thus, the public is protected. [Client A] will be compensated from the Member, if [Client A] chooses to seek therapy due to this traumatic experience. This penalty sends a clear message to the membership that the College will not tolerate such blatant disregard of College standards, which are set to not only protect the public, but especially the vulnerable [clients] that their members provide care for every day.

I, Tammy Hedge, RPN, sign this amended 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

Cathy Ward, Public Member