College of Nurses of Ontario v. Michelle Chan, 2018 ONCNO 106489

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Ingrid Wiltshire-Stoby, NP Chairperson

Catherine Egerton Public Member Carolyn Kargiannakis, RN Member Lina Kiskunas, RN Member

Chuck Williams Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) MEGAN SHORTREED for

) College of Nurses of Ontario

• and - )

MICHELLE CHAN ) CAROL STREET for

Registration. No. 13571798 ) Michelle Chan

) CHRIS WIRTH

) Independent Legal Counsel

) Heard: August 2, 2018

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on August 2, 2018 at the College of Nurses of Ontario (the “College”) at Toronto.

Michelle Chan (the “Member”) was present for the hearing and was represented by Counsel.

Publication Ban

At the request of the College and on being advised that the Member did not oppose the request, the Panel made an order pursuant to s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991 banning the disclosure, including the publication and broadcasting, of the identity of the client referred to in the Discipline Hearing of the Member or any information that could disclose the client’s identity, including any reference to the client’s name contained in the allegations in the Notice of Hearing and in any exhibits filed with the Panel.

The Allegations

The allegations against Michelle Chan (the “Member”) as stated in the Notice of Hearing dated

July 3, 2018 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 Nurse at St. Michael’s Hospital in Toronto, Ontario (the “Hospital”), you contravened a standard or practice of the profession or failed to meet the standards of practice of the profession as follows:

a. between June - August, 2016, you failed to maintain the boundaries of the therapeutic nurse-client relationship with [the Client]; and/or

b. on or about August 9, 2016, you had sexual intercourse with [the Client]; and/or

2. 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 at the Hospital, you sexually abused a client, as follows:

a. on or about August 9, 2016, you had sexual intercourse with [the Client]; and/or

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 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 June – August, 2016, you failed to maintain the boundaries of the therapeutic nurse-client relationship with [the Client] and/or

b. on or about August 9, 2016, you had sexual intercourse with [the Client]

Member’s Plea

The Member admitted to the allegations set out in paragraphs 1(a), 1(b), 2(a), 3(a) and 3(b) in the Notice of Hearing dated July 3, 2018. 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. Michelle Chan (the “Member”) obtained a degree in nursing from the University of Toronto in 2013.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on December 10, 2013. The Member’s certificate of registration was interim suspended by the Inquiries, Complaints and Reports Committee on November 22, 2017.

3. The Member was employed at St. Michael’s Hospital (the "Hospital") from January 27, 2014 to September 15, 2016, when her employment was terminated as a result of the incidents below.

THE HOSPITAL

4. The Hospital is located in Toronto, Ontario.

5. The Member worked at the Hospital on the Respirology Unit, [ ] as a casual staff nurse.

6. The Respirology Unit at the Hospital is located at [ ] in Toronto (the “Unit”). It has 15 client beds and was almost always filled to capacity. [ ]. The most common diagnosis on the Unit is Cystic Fibrosis, and clients are typically admitted for a minimum of two weeks, though some stays were longer.

7. All nurses on the Unit are RNs who work 12 hour day or night shifts from 0730 to 1930 or from 1930 to 0730. The nurse to client ratio is one nurse to five clients, which means there are always three RNs working each shift, including the Charge Nurse. During the day shift, there is an additional Resource Nurse on shift.

THE CLIENT

8. was 31-years old at the time of the incident. He was diagnosed with cystic fibrosis.

9. He was admitted to the Hospital as an inpatient on June 29, 2016 and was discharged on October 4, 2016. Between July 13 and August 4, he was temporarily moved to another unit — [ ].

10. The Client had previous admissions to the Hospital ([ ]).

11. The Client died in June 2018.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Incident on August 9, 2016

12. The Member worked the night shift on August 8-9, 2016, from 1930 to 0730. She was assigned to provide care to the Client.

13. Around 0300, the Member took her break. During her break, she went in the Client’s room to play video games with him. [RN #1], another RN on shift, shut the door to prevent the sound of the video games from disturbing other clients.

14. Approximately 30 minutes later, another client asked [RN #1] about noises that were coming from the Client’s room. [RN #1] went to the Client’s door and heard noises (moaning) coming from the room, which she worried were sexual in nature. [RN #1] reported the noise to the charge nurse, G.A.K., who was asleep on break. G.A.K. did not provide [RN #1] with any direction.

15. [RN #1] then decided to investigate the noise. When she returned to the Client’s door, [RN #1] would testify that she heard squeaking noises, which sounded like a bedframe moving. [RN #1] entered the Client’s room and witnessed the Member and the Client having sexual intercourse. The Member and the Client both ran to the bathroom when [RN #1] entered the room.

16. [RN #1] reported the incident to Hospital management on August 23, 2016 when the Resource Nurse returned from vacation. The Hospital investigated the incident, which included meeting with the Member and the Client.

17. On August 25, 2016, the Member sent a text message to the Client asking him to meet her to discuss the story they would tell the Hospital.

Member: Make sure you say the same story as me. I need to tell you the story. I’m up on Bond just north of Shuter.

18. The Member and another RN, L.G.I., then drove the Client to L.G.I’s home to further discuss what they would tell the Hospital. The Client was offered alcohol and marijuana at L.G.I.’s home. If the Member were to testify, she would say she did not smoke any marijuana and did not drink any alcohol.

19. During their discussion, the Member asked the Client to tell the Hospital that he had initiated sexual contact.

20. On August 30, 2016, the Member sent the following messages to the Client via Snapchat:

Member: You didn’t say you instigated anything, did you?

Member: I knew you’d do that fuck. You needed to make it more your instigator, they’re not investigating you. [L.G.I.] and I both went over this with you. You should have made it seem more like you instigated.

Client: I had my meeting with patient affairs.

Member: how was the meeting

you didn’t say you instigated it

Yay, you obviously understand what it feels like to think you are a piece of shit HAHA

Thanks for sorta supporting me…even though you were a part of the big ordeal to begin with :p

21. On August 31, 2016, the Member sent the following messages to the Client via Snapchat:

Member: [L.G.I.] and I both went over this w u. You should have made it seem more like YOU instigated

Now my fucking license is gone forever

I’m fucking going back to fucking waitressing after all my fucking education

22. Prior to having sexual intercourse on August 9, 2016, the Member and the Client were friends. They spent time together playing video games in the Client’s room, hunting for Pokémon off the Unit and corresponding on social media, including Snapchat and Facebook.

23. If the Member were to testify, she would express remorse for her conduct and for any harm it caused to the Client. The Member would also say that she has learned from her mistake and she now understands that she abused the power imbalance between herself and the Client, which she regrets.

24. In any case, the Member acknowledges that she had sexual intercourse with the Client at the Hospital while he was a patient and she was assigned to his care. The Member also acknowledges that she breached the standards of practice of the profession and that she sexually abused the Client.

COLLEGE STANDARDS

25. 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.

26. 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.

27. 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.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

28. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1(a) and (b) of the Notice of Hearing, as described in paragraphs 12 to 24 above, in that she breached the College’s Therapeutic Nurse-Client Relationship standard, and therefore contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, when she engaged in a personal relationship with the Client, including engaging in sexual intercourse with the Client on August 9, 2016.

29. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2(a) of the Notice of Hearing, in that she sexually abused the Client when she engaged in sexual intercourse with him on August 9, 2016.

30. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 3(a) and (b) of the Notice of Hearing, by failing to maintain the boundaries of the therapeutic nurse-client relationship with the Client, and by engaging in sexual intercourse with the Client while he was her patient, and therefore, that she engaged in conduct relevant to the practice of nursing that would reasonably be regarded by members as disgraceful, dishonourable and unprofessional, as described in paragraphs 12 to 24 above.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities based upon clear, cogent and convincing evidence.

The Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), 1(b), 2(a), 3(a) and 3(b) in the Notice of Hearing. As to allegations 3(a) and 3(b), the Panel finds that the Member engaged in conduct that would reasonably be considered by members to be unprofessional, dishonourable and disgraceful.

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 17, 18, 19, 20, 21 and 28 in the Agreed Statement of Facts in that the Member failed to maintain the boundaries of the therapeutic nurse-client relationship by contacting the client by text to arrange a meeting outside of the facility. The Member along with another RN offered alcohol and marijuana to the client. The Member also posted vulgar messages on Snapchat to have the client tell the story that “he”, the client, was the instigator of the “ordeal”. The Member also admitted to the misconduct that she engaged in a personal relationship with the client including sexual intercourse.

Allegation 1(b) in the Notice of Hearing is supported by paragraphs 15, 23, 24 and 28 in the Agreed Statement of Facts. In these statements, the Member confirms that she did have sexual intercourse with the client. This on itself is a failure to meet the standards of practice.

Allegation 2(a) in the Notice of Hearing is supported by paragraphs 15, 23 and 29 in the Agreed Statement of Facts. The Member’s admission of having sexual intercourse with a client while working as an RN is sexual abuse.

Allegation 3(a) in the Notice of Hearing is supported by paragraph 30 in the Agreed Statement of Facts in that the Member admits to breaching the boundaries of the therapeutic nurse-client relationship and that these actions would be deemed as disgraceful, dishonourable and unprofessional. In regard to finding the acts to be disgraceful, dishonourable and unprofessional, the Panel finds that the acts committed by the Member displayed elements of moral failing. The Member ought to have known that her conduct was unacceptable and that she was conducting herself with persistent disregard for her professional obligations.

Allegation 3(b) in the Notice of Hearing is supported by paragraph 30 in the Agreed Statement of Facts in that the Member admits to having sexual intercourse with a client. In regard to finding the acts to be disgraceful, dishonourable and unprofessional, the Panel finds that the acts committed by the Member displayed elements of moral failing. The Member ought to have known that her conduct was unacceptable and that she was conducting herself with persistent disregard for her professional obligations.

Penalty

Counsel for the College and the Member advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission on Order 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 Counsel for the College and the Member.

College Counsel submitted to the Panel that subsection 51(5) of the Health Professions Procedural Code (the “Code”), establishes mandatory penalties for sexual abuse involving sexual intercourse. College Counsel went on further to state that subsection 51(6) of the Code provides that before making an order under subsection (5), the Panel shall consider any written statement that has been filed, and any oral statement that has been made to the Panel, describing the impact of the sexual abuse on the client. College Counsel followed this by quoting subsection 51(7) of the Code which provides that the statement may be made by the client or by his or her representative, along with subsection 51(8) that the Panel shall not consider the statement unless a finding of professional misconduct has been made.

College Counsel then introduced (“[the Client’s Widow]”) who gave a victim impact statement.

[The Client’s Widow] told the Panel she was there to discuss the “emotional and physical effects that were suffered as a direct result of the actions of the nurse in court today”. [The Client’s Widow] went on to provide the Panel with some background on the client who had been born with a terminal disease and who lived at an “accelerated pace”. [The Client’s Widow] went on to tell the Panel how her husband would self-medicate with drugs and alcohol. [The Client’s Widow] stated that her husband had been in the hospital for 6 weeks back in 2016 when this incident had occurred and how he was not “bouncing back” as quickly as he used to. [The Client’s Widow] went on to state that the Member took advantage of his vulnerable state and the stress of the demeanor to hide what had occurred changed him. [The Client’s Widow] explained that her husband became withdrawn and seemed to have “fallen into a state of depression and was quick to anger”. She noted that “he was visibly shaken and traumatized that someone was empowered with professional responsibility for his care well-being, had taken advantage of him”.

As a result of this incident [the Client] pushed her away as he didn’t feel worthy of her love and felt she would be better off without him in her life. [The Client’s Widow] said “both he and I were robbed of the last two years of his life and that is time we can never get back”.

The parties agreed that the mitigating factors in this case was that the Member did cooperate with the College by acknowledging the professional misconduct with an Agreed Statement of Facts. The Member expressed remorse.

The aggravating factors in this case are the seriousness of the allegations and the Member’s conduct after the incident. The Member not only had sexual intercourse with a client but then tried to use aggressive texts and Snapchat to try to have the client admit he was the one who instigated the incident.

Overall, the public is protected as the Member’s certificate of registration has been revoked.

College Counsel submitted a case to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee:

CNO v. Kuiken-Rogers (Discipline Committee, 2014). In this case, the member was found to have engaged in a sexual relationship involving sexual intercourse before the client had been discharged. The penalty was an oral reprimand and revocation of his registration. The Member in this case was also required to reimburse the College for funding up to the amount of $5,000 provided for [the client] under the program required by s.85.7 of the Health Professions Procedural Code, if the client accesses the fund.

Counsel for the Member submitted to the Panel that the Member at the time of the allegations was only 26 years of age and the client was 31 years of age. The client had long stays due to the nature of his disease. The incident took a long time until it was reported and the client had consented to sexual intercourse. Counsel for the Member gave us a letter from a “Community Church” that stated the Member is enrolled in a Step Study. This program involves going through the 12 steps and 8 principles of recovery. The Member’s Counsel told the Panel that the Member has been depressed with suicidal thoughts since the incident.

Penalty Decision

The Panel accepts the Joint Submission on 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.

Reasons for Penalty Decision

The Panel understands that the penalty ordered should protect the public and enhance the public’s confidence in the ability of the College to regulate nurses.

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 her actions.

I, Ingrid Wiltshire-Stoby, 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.

Chairperson Date