DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: David Edwards, RPN Chairperson Catherine Egerton Public Member Carly Gilchrist, RPN Member George Rudanycz Member Devinder Walia Public Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO JEAN-CLAUDE KILLEY for College of Nurses of Ontario
- and -
JAMES MATTHEW RODGERS ROBERT STEPHENSON for Reg. No. 10414866 James Matthew Rodgers CHRIS WIRTH Independent Legal Counsel
Heard: APRIL 9, 2018
DECISION AND REASONS
This matter came on for hearing before a Panel of the Discipline Committee (“the Panel”) on April 9, 2018 at the College of Nurses of Ontario (“the College”) at Toronto. James Matthew Rodgers, (“the Member”) was present and was represented by counsel.
Publication Ban
At the request of College counsel, and pursuant to s.45(3) of the Health Professions Procedural Code, the Panel ordered a ban of the publication and broadcasting outside of the hearing room of any information that may identify the client referred to in the Discipline hearing of the Member.
The Allegations
The allegations against James Matthew Rodgers as stated in the Notice of Hearing dated February 8, 2018 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 practising as a Registered Nurse at Windsor Regional Hospital (the “Facility”), you sexually abused a patient, and in particular:
(a) between about January 24, 2017 and March 3, 2017, you engaged in behaviour or remarks of a sexual nature with [the Client], including that you sent text messages to [the Client] of a sexual nature;
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(1) of Ontario Regulation 799/93, in that, while practising as a Registered Nurse at the Facility, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, and in particular:
(a) between about January 24, 2017 and March 3, 2017, you breached the boundaries of the therapeutic nurse-client relationship with [the Client], including that you sent text messages to [the Client] of a sexual nature;
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 practising as a Registered Nurse at the Facility, 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, and in particular:
(a) between about January 24, 2017 and March 3, 2017, you engaged in behaviour or remarks of a sexual nature with [the Client], including that you sent text messages to [the Client] of a sexual nature;
(b) between about January 24, 2017 and March 3, 2017, you breached the boundaries of the therapeutic nurse-client relationship with [the Client], including that you sent text messages to [the Client] of a sexual nature.
Member’s Plea
The Member admitted the allegations set out in paragraphs 1(a), 2(a), 3(a),(b) in the Notice of Hearing. The Panel 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 follows1.
THE MEMBER
James Matthew Rodgers (the “Member”) obtained a degree in nursing from the University of Windsor in 2010.
The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on May 17, 2010.
The Member was employed at Windsor Regional Hospital, Ouellette Campus (the “Hospital”) from April 26, 2010 to March 6, 2017, when his employment was terminated as a result of the incidents below.
The Member was considered to be a good nurse. He has no prior history of workplace misconduct nor has he had any prior complaints at the College. He was 30 years old at the time of the incidents.
THE HOSPITAL
The Hospital is located in Windsor, Ontario.
The Member worked as a full-time staff nurse in the Emergency Department (“ED”).
THE CLIENT
The Client (the “Client”) was 24 years old at the time of the incidents.
She had recently been diagnosed with depression and was prescribed medication to manage the symptoms. The Client had attempted suicide in October 2016. At the time the Member provided care to the Client he was not aware of this history.
INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT
On January 24, 2017, the Client attended the Hospital’s ED with complaints of hallucinations and delusions. Among other symptoms, the Client was manic and flirtatious, and was assessed on a preliminary basis as having bi-polar disorder. Her suicide attempt from October 2016 was charted on her triage record. This information was not available to the Member at the time he provided care to the Client.
The Client was referred to the on-call psychiatrist. This was after the Member’s shift was finished and he had left the Hospital. The psychiatrist discharged the Client that day, with a follow-up appointment booked on an urgent basis for a psychiatric evaluation on February 14, 2017
The Member worked the day shift on January 24, 2017, from 0700 to 1900. He provided care to the Client consisting of a primary assessment following her triage. The assessment lasted 5-10 minutes. The Member’s assessment was that the Client was exhibiting signs of mania. The complaints and symptoms referenced to in paragraphs 8 and 9 above were not part of the chart at the time of his assessment.
Prior to the Member completing his shift on January 24, 2017, the Client handed the Member a piece of paper with her phone number on it and a sexually suggestive message.
Unknown to the Member, on January 26, 2017, the Client called the Hospital at 0300 asking for the Member’s full name and when he would be working. She called again 20 minutes later to request the same information, which the staff answering the phone declined to provide each time. The Client arrived at the Hospital at 0500 by ambulance – the EMTs who transported her reported that she was talking about the Member, saying she wanted to see him and live with him.
The Member was not working on January 26, 2017. Hospital staff spoke with him by telephone that day to advise him that the Client had been brought to the Hospital and was asking about him (the Member was not advised of the specific details reported by the EMTs). The Hospital was concerned for the Member’s safety. The Member was specifically advised:
a. that the Client was being admitted to the Mental Health Unit at the Hospital;
b. that the Client had been asking for the Member by name; and
c. that a flag was placed on her file with respect to not disclosing information about the Member, including whether or not he was working.
The Member informed the Hospital that he was not concerned for his own safety, but was instead concerned for the Client’s mental well-being. He did not inform the Hospital that the Client had given him her phone number. If the Member were to testify, he would say that he did not do so because he did not take the note seriously or think that it would result in a relationship developing.
The Client was admitted to the Hospital on January 26, 2017 on an involuntary basis as an inpatient on the Mental Health Unit. During her stay the Client was granted several day passes and participated in groups with social, occupational and recreational therapy. The Client remained an inpatient at the Hospital until February 13, 2017, when she was discharged with a diagnosis of Bipolar Disorder, Type 1. If the Member were to testify, he would say that he was not aware of the Client’s specific diagnosis until he saw her health records in the context of these discipline proceedings.
The Member and the Client began exchanging sexually explicit text messages and videos at some point after she was discharged from the Hospital on February 13, 2017. Screenshots of the text messages exchanged between the Member and the Client from February 16, 2017 onward are attached as Appendix A.
On February 21, 2017, the Member and the Client continued to exchange increasingly sexually explicit text messages and photos. The Member texted the Client, “I want you to touch yourself looking at my pic ;)” He then suggested he could FaceTime with the Client or meet her in person to watch her masturbate.
The Member texted the Client, “I really think we should master bate [sic] in front of each other in person.”
The Client participated willingly with the Member in these exchanges, sending the Member sexually explicit text messages and images of herself.
On March 2, 2017, the Client was re-admitted to the Hospital’s inpatient Mental Health Unit because her symptoms returned, as she had attempted to wean herself off her medication because her parents felt she was quite sedated. The Member was not made aware of the Client’s readmission at the time, or of any of the details of the Client’s symptoms or treatment. The Member and the Client had no contact at the time of or after this admission.
That same day, the Client’s sister, who had become suspicious of the Client’s texting activity over the prior weeks, looked at the Client’s phone and saw the text message history with the Member. The Client admitted to her sister that the text messages were with the Member.
The Client’s sister informed their mother of the situation. If the Client’s mother were to testify, she would state that she sent a text message to the Member from the Client’s phone identifying herself as the Client’s mother and suggesting that he stop texting the Client or she would contact the Hospital and the police (a copy of that message is at p. 791 of Appendix A). The Client’s mother reported the incident to the Hospital the next day, on March 3, 2017. If the Member were to testify, he would state that he never received a text from the Client’s mother.
The Member acknowledges that he texted photos of his penis to the Client, texted her a video of himself masturbating, professed a desire to see explicit photos of her, encouraged her to send him explicit photos of herself, encouraged her to masturbate in his presence, and discussed with the Client having her watch him masturbate.
If the Member were to testify, he would state that he had no prior experience with patients like the Client. He is not trained in psychiatric nursing. His actions were premised on the belief that, at all material times, the Client consented to all of the conduct that is at issue. If the Client were to testify, she would say she willingly participated in their exchange and that she does not view herself as a victim. Copies of the Client’s text messages expressing remorse for what has happened to the Member are attached as Appendix B.
While the Member did not consider the Client to be his client after his care for her concluded on January 24, 2017, he now appreciates that the Client maintained an ongoing patient relationship with the Hospital at which he was employed, and that as a result, his professional obligations continued throughout that period.
If the Member were to testify, he would express his sincerest apologies and he would express shame that he let the profession down. He would say that he acted without focusing on his professional obligations and that he was under the belief that this was a consensual relationship. The Member now knows that these were serious lapses in judgment and that he is aware of the professional consequences of his actions, regardless of the foregoing. As part of this self-reflection and self-assessment, he elected to waive his right to a pre-hearing conference and he admits that his acts constituted sexual abuse with full knowledge that his certificate of registration will be revoked for five years.
The Member would further testify that, in an effort to gain insight into his own actions, he voluntarily sought therapy in order to ensure this conduct never happens again. He has seen, and continues to see, a psychologist on a regular basis. He also was assessed by a psychoanalyst who concluded he was not a sexual predator or a sexual deviant. Copies of those reports are attached as Appendices C and D.
ADMISSIONS OF PROFESSIONAL MISCONDUCT
The Member admits that he committed the acts of professional misconduct as alleged in paragraph 1(a) of the Notice of Hearing, as described in paragraphs 9 to 28 above, in that he sexually abused a patient when he exchanged sexually explicit text messages with the Client
The Member admits that he encouraged the Client to masturbate in his presence, and that he texted a video of himself masturbating to the Client, which amounts to masturbating in the Client’s presence, both of which are acts of sexual abuse that require the mandatory penalty of revocation.
The Member admits that he committed the acts of professional misconduct as alleged in paragraph 2(a) of the Notice of Hearing, in that he breached the boundaries of the therapeutic nurse-client relationship when he exchanged sexually explicit text messages with the Client.
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 3 (a) and (b) of the Notice of Hearing, and in particular his conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 9 to 28 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 3(a),(b), 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 17, 18, 19, 20, 24, 29 and 30 in the Agreed Statement of Facts. These facts show that the Member committed acts of professional misconduct in that he sexually abused a patient, in particular he sent text messages of a sexual nature to the patient.
Allegation #2 in the Notice of Hearing is supported by paragraphs 26, 27, and 28 in the Agreed Statement of Facts. These facts show that the Member contravened a standard of practice when he breached the boundaries of the therapeutic nurse-client relationship by sending the sexually explicit text and video messages to the client.
Allegation #3(a) in the Notice of Hearing is supported by paragraphs 30 and 32 in the Agreed Statement of Facts in that the Member admits to sexually abusing a patient. In regard to deeming the acts as 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 his conduct was unacceptable and that he was conducting himself with persistent disregard for his professional obligations.
Allegation #3(b) in the Notice of Hearing is supported by paragraphs 30 and 32 in the Agreed Statement of Facts in that the Member admits to breaching the boundaries of the therapeutic nurse-client relationship and these actions would be deemed as disgraceful, dishonourable and unprofessional. In regard to deeming the acts as 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 his conduct was unacceptable and that he was conducting himself with persistent disregard for his 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 requests that this Panel make an order as follows.
Requiring the Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.
Requiring the Member 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.
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.
Counsel for the College submitted to the Panel that subsection 51(5) of the Health Professions Procedural Code (the “Code”), establishes mandatory penalties for sexual abuse involving masturbation of the Member by, or in the presence of, the patient as well as the encouragement of the patient by the Member to masturbate in the presence of the Member. The penalties include an oral reprimand and revocation of the Member’s certificate of registration.
The Code 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 a right of recovery for the costs associated with such funding.
Counsel for the Member submitted to the Panel that the Member, in an effort to gain insight into his actions, voluntarily sought therapy in order to ensure this conduct never happens again. He has seen, and continues to see, a psychologist on a regular basis. A treatment summary was provided to the Panel. Counsel reviewed that the Member sought treatment to “better understand himself and prevent future occurrences of undesired or compulsive behaviour from occurring”. During these sessions the Member was “able to express confidence in himself and his ability to prevent the development of inappropriate relationships with others”.
The Member was assessed by a psychoanalyst who concluded he was not a sexual predator or a sexual deviant.
Penalty Decision
The Panel accepts the Joint Submission as to Order and accordingly orders:
The Member is required to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.
The Member is 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.
The Executive Director is directed to immediately revoke the Member’s certificate of registration.
Reasons for Penalty Decision
The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has appeared before the Panel for the hearing, 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 were mandatory penalties. The Panel found that the additional aspect of the order, requiring the Member to reimburse the College for funding up to the amount of $5,000 provided for the Client, should the Client access the College’s funding program for sexual abuse survivors, is reasonable and in the public interest in light of the Member’s misconduct.
I, David Edwards, 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.
Chairperson Date