College of Nurses of Ontario v. Lara Louise Riehl, 2019 CanLII 132000

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Heather Stevanka, RN Chairperson

Renate Davidson Public Member Michael Schroder, NP Member Devinder Walia Public Member

Ingrid Wiltshire-Stoby, NP Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JEAN-CLAUDE KILLEY for

) College of Nurses of Ontario

• and - )

LARA LOUISE RIEHL ) NO REPRESENTATION for

Registration No. 9227851 ) Lara Louise Riehl

) CHRISTOPHER WIRTH ) Independent Legal Counsel

) Heard: May 21-23, 2019

AMENDED DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on May 21, 2019 to May 23, 2019 at the College of Nurses of Ontario (the “College”) at Toronto.

As Lara Louise Riehl (the “Member”) was not present, the hearing recessed for 15 minutes to allow time for the Member to appear. Upon reconvening, the Panel noted that the Member was not in attendance.

College Counsel provided the Panel with evidence that the Member had been sent the Notice of Hearing on April 11, 2019. The Panel was satisfied that the Member had received adequate notice and therefore proceeded with the hearing in the Member’s absence.

Publication Ban

College Counsel brought a motion pursuant to s.45(3) and s.47(1) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order banning the disclosure, including the publication and broadcasting of the names of the clients or any information that could disclose the clients’ identities referred to in the Discipline Hearing of Lara Louise Riehl.

The Panel has considered the submissions of the College and orders that there be a ban on the disclosure, including the publication and broadcasting, of the identities of the clients referred to in the Discipline Hearing of Lara Louise Riehl or any information that could disclose the clients’ identities, including any reference to the clients’ names contained in the allegations in the Notice of Hearing and in any exhibits filed with the panel.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated April 9, 2019 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 in the Extended Class at [the Clinic], you sexually abused a patient, and in particular:

(a) between about the spring of 2015 and January 2017, you maintained a sexual relationship with [patient B] that included sexual intercourse and/or other forms of physical sexual relations between you and [patient B], and/or touching of a sexual nature of [patient B] by you, and/or behaviour or remarks of a sexual nature by you towards [patient B];

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 in the Extended Class at [the Clinic], 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 the spring of 2015 and January 2017, you maintained a sexual and/or a personal relationship, with [patient B], who was the [spouse] of [patient A], and the [parent] of a [patient];

(b) between about August 2015 and August 2016, you maintained a sexual and/or a personal relationship, with [patient B], who was the [spouse] of [patient A], knowing that [patient A] was aware of the affair and/or relationship, and knowing (or in circumstances where you ought reasonably to have known) that the affair and/or relationship was a source of distress to your [patient A];

(c) between about the spring of 2015 and January 2017, you engaged in personal, non-therapeutic contact and/or activity with [patient B] and/or [patient A], that included but was not necessarily limited to:

(i) having dinner socially with [patient B] and/or [patient A];

(ii) asking [patient B] to take your son hunting;

(iii) staying overnight at the home of [patient B] and [patient A];

(iv) engaging in personal and/or intimate conversations, including verbally and/or by text message or similar means, with [patient B]; and

(v) having coffee and/or drinks with [patient A];

(d) between about the spring of 2015 and January 2017, you failed to transfer the care of [patient B] and/or [patient A] and/or their [child], and continued to be their care provider, while at the same time maintaining a sexual and/or a personal relationship, with [patient B], who was the [spouse] of [patient A], and the [parent] of a [patient];

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(7) of Ontario Regulation 799/93, in that, while practising as a Registered Nurse in the Extended Class at [the Clinic], you abused a [patient] verbally, physically, or emotionally, and in particular:

(a) between about August 2015 and August 2016, you maintained a sexual and/or a personal relationship, with [patient B], who was the [spouse] of [patient A], knowing that [patient A] was aware of the affair and/or relationship, and knowing (or in circumstances where you ought reasonably to have known) that the affair and/or relationship was a source of distress to your [patient A];

4. 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 in the Extended Class at [the Clinic], 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 the spring of 2015 and January 2017, you maintained a sexual relationship with [patient B] that included sexual intercourse and/or other forms of physical sexual relations between you and [patient B], and/or touching of a sexual nature of [patient B] by you, and/or behaviour or remarks of a sexual nature by you towards [patient B];

(b) between about the spring of 2015 and January 2017, you maintained a sexual and/or a personal relationship, with [patient B], who was the [spouse] of [patient A], and the [parent] of a [patient];

(c) between about August 2015 and August 2016, you maintained a sexual and/or a personal relationship, with [patient B], who was the [spouse] of [patient A], knowing that [patient A] was aware of the affair and/or relationship, and knowing (or in circumstances where you ought reasonably to have known) that the affair and/or relationship was a source of distress to your [patient A];

(d) between about the spring of 2015 and January 2017, you engaged in personal, non-therapeutic contact and/or activity with [patient B] and/or [patient A], that included but was not necessarily limited to:

(i) having dinner socially with [patient B] and/or [patient A];

(ii) asking [patient B] to take your son hunting;

(iii) staying overnight at the home of [patient B] and [patient A];

(iv) engaging in personal and/or intimate conversations, including verbally and/or by text message or similar means, with [patient B]; and

(v) having coffee and/or drinks with [patient A];

(e) between about the spring of 2015 and January 2017, you failed to transfer the care of [patient B] and/or [patient A] and/or their [child], and continued to be their care provider, while at the same time maintaining a sexual and/or a personal relationship, with [patient B], who was the [spouse] of [patient A], and the [parent] of a [patient].

Member’s Plea

Given that the Member was not present nor represented, she was deemed to have denied the allegations in the Notice of Hearing. The Hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

The Member has been a registered nurse with the College since 1992 and registered as a member of the extended class as a nurse practitioner on November 22, 2007. The Member worked as nurse practitioner at a [ ] medical clinic (the “Clinic”), in [ ] from August 2007 until June 7, 2017 when her employment was terminated. The Clinic [ ] provides the community with multidisciplinary healthcare services, including family physicians, registered nurses, and nurse practitioners, as well as other professionals. The Member was assigned to provide care to [Patient B], [Patient A] ([Patient B’s] spouse) and their [child].

It is alleged that the Member, between the spring of 2015 and January 2017, maintained a sexual relationship with [Patient B] that included intercourse and/or forms of physical sexual relations, and that during this time, the Member engaged in a personal, non-therapeutic contact with [Patient A]. It is alleged that the Member maintained this sexual/personal relationship with [Patient B] knowing that the affair was a source of distress to [Patient A].

The issues are as follows:

• Did the Member commit an act of professional misconduct in that she engaged in sexual abuse of a patient?

• Did the Member contravene or fail to meet standards of practice of the profession during her nurse-client relationship with [Patient B], [Patient A] and their child?

• Did the Member verbally, physically or emotionally abuse a [patient]?

• Did the Member engage in conduct that would be reasonably regarded by members of the profession as disgraceful, dishonourable, or unprofessional?

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), 2(a), 2(b), 2(c) (i), (ii), (iv), (v), 2(d), 3(a), 4(a), 4(b), 4(c), 4(d) (i), (ii), (iv), (v), 4(e).

The Panel makes no finding for allegations 2(c) (iii) and 4(d) (iii).

The Evidence

The Panel heard evidence from four witnesses and received 21 exhibits, including the College’s Professional Standards, Revised 2002, and the Therapeutic Nurse-Client Relationship Practice Standard, Revised 2006.

Witness #1 – [ ]

[Witness 1] is [ ] a member of the management team, is responsible for human resources and clinical/quality oversight in collaboration with the medical director. The witness stated that the Member started out as a registered nurse and then became a nurse practitioner in 2007. She stated the Member’s duties included functioning as an independent primary care provider with her own case load of [patients]. The witness testified that she was told by one of the physicians that there were rumours of the Member having a personal relationship with her [Patient B]. She proceeded to investigate the matter and found that the Member was listed as [Patient B’s] provider; however, on June 9, 2016 the records were changed by the Member to show that Physician #62 ([the Physician]) was the [patient’s] doctor. The witness testified that this caused her concern as [the Physician] was on maternity leave at the time. She testified that she was able to look at the patient notes (Exhibit 6) and see that the Member was listed as the primary care provider for [Patient B] and was providing care to him.

The witness testified that she met with the Member on June 16, 2016 to ask her about her relationship with [Patient B]. The Member told her that they were “friends” and that her son was working for him. The Member acknowledged that she had changed the information in [Patient B’s] EMR (Electronic Medical Record) to the primary care giver being [the Physician], as she and [Patient B] were friends and it was appropriate for him to see another care provider. The witness testified that she asked the Member if she was having a sexual relationship with [Patient B] and that the Member denied it. The witness indicated that she then contacted the College regarding the findings of her investigation and was told she needed something more concrete to proceed with a report. The witness testified that she issued and presented a letter dated June 20, 2016 to the Member outlining the “the findings from our investigation into the allegations of a sexual relationship with a patient and those areas needing performance improvement that were discovered during this investigation” (Exhibit 9).

The witness testified that [Patient B’s] spouse, [Patient A], contacted her in July 2016 about her suspicions that [Patient B] was in a relationship with the Member. She stated that she and [Patient A] had numerous conversations about the matter during the summer, however, [Patient A] was not willing to make a formal complaint to the College about the Member.

The witness indicated that she received a package in May 2017 from [Patient A] including a USB drive that contained folders and information regarding the sexual relationship between [Patient A’s] [spouse], [Patient B] and the Member (Exhibit 10). The witness testified that she then proceeded to investigate the matter again, including having conversations with [Patient B] during which he confirmed that he had been in a sexual relationship with the Member (Exhibit 11). The witness stated that she met with the Member on June 1, 2017 and June 7, 2017. She stated that the Member confirmed [Patient B] had been living with her from the end of August 2016 until January 2017, but denied any sexual relationship between herself and [Patient B], indicating it was nothing more than friendship and fantasy talk about sex (Exhibit 12).

The witness testified that following her investigation, the Member’s employment was terminated on June 7, 2017 (Exhibit 13).

The Panel found this witness to be forthcoming and credible. She was thorough in her investigation into the allegations and provided documentation on all aspects of her investigation. The documentary evidence supported her oral evidence. She was non-biased and professional. The witness was clear as to the events and referred to her notes when College Counsel referenced them. She was calm, direct and confident.

Witness #2 – [Patient B]

The witness testified that he is married to [Patient A], that they have one [child] who was born in [ ], and that the family have been patients at the Clinic since the early [ ]. He testified that the Member was their primary care provider and that he saw her infrequently as he is “a relatively healthy person”. The witness testified that the patient notes (Exhibit 6) referred to the care he was given by the Member. The witness stated that all of his [child’s] appointments at the Clinic that occurred between 2011 and 2015 were attended by him.

The witness testified that a sexual relationship developed between him and the Member. He stated they were friends outside of the professional environment and then “it happened”. The witness testified that he and the Member engaged in sexual intercourse and oral sex three or more times per week. He could not recall if they had anal sex. He testified that the locations for their sexual encounters were at his [ ] or at the Member’s home. The witness stated that he understood the Member to be his nurse practitioner and that he was her patient. He stated that he and the Member would exchange text messages, some of them of a sexual nature. He was able to recall a number of them when referred to the exhibits.

The witness testified that his [spouse] first confronted him in August 2015 after “she checked my phone”. He stated that he does not recall much of the conversation except that she asked him to stop having a sexual relationship with the Member. The witness testified that he continued the sexual relationship with the Member and also lived with the Member for a while, but could not recall when it stopped “January or February 2017, not sure”. He stated that he “purged some of the events from his brain multiple times”.

The witness testified that he was informed by the Member after the fact that he was no longer her patient. He stated that this change had a 100% negative impact on his ability to access health care. He stated that he never received a referral to an [ ] specialist, that he was in tremendous pain and that the individual he was referred to eventually was less qualified.

The witness testified that his sexual relationship with the Member had a 100% negative impact on his family life. He stated “it destroyed a family, I regret every minute of what transpired”.

The Panel found the testimony of this witness to be vague and with limited recall on the timelines of the events. He did not have accurate information on the dates, but was forthcoming about the sexual nature of his relationship with the Member. He appeared to have selective memory.

Witness #3 – [Patient A]

The witness testified that she lives in [ ], is currently separated from [Patient B] but [ ]. She testified that she was a patient of the Member. She stated that when her family moved to [ ] and heard that the nurse practitioner was accepting patients, they enrolled in 2007. She stated that she did not know the Member before becoming her patient.

The witness testified that [Patient B] and the Member had developed a friendship and that she had social interactions with the Member as well. She testified that in the spring of 2015, [Patient B] was taking the Member’s son hunting and she heard from [Patient B] about things the Member was involved in. The witness testified that she became uncomfortable with the amount of contact between [Patient B] and the Member and discussed this with him. However, his response was that she was unreasonable. She stated she then noticed on August 22, 2015 that [Patient B] was trying to hide his phone and iPAD. She stated that as they owned [ ] together, she was able to check who was texting him but found that everything was deleted. She testified that she then used a software package to download all the messages that were deleted. The witness stated that the information she downloaded gave her “all the information I needed to know they were having a sexual affair”. The witness testified that she confronted [Patient B] who denied the affair at first but then on August 23, 2015 admitted that he had been in a sexual affair with the Member for some time. She stated that [Patient B] was very angry and wanted a week or so to decide if he wanted to stay with her or be with the Member. The witness stated she had lots of the evidence of the affair; she exported the text messages to an excel spreadsheet and then provided it to the College (Exhibit 16).

The witness testified that [Patient B] then agreed to stop the affair, but wanted to continue the friendship with the Member and [Patient A] agreed. She indicated that she got in touch with the Member a few weeks later intending to talk to her woman to woman and told her “I need you to give up the friendship with [Patient B]”. The Member told her that the affair was over and that she agreed to give up the friendship as well.

The witness testified that she and the Member then discussed their relationship as her health care provider and that she was told by the Member “this will have no impact on my ability to give you medical care”. The witness stated that she told the Member if all went well, she would not take any action against her. The witness testified that she had looked up the College website and was aware that sexual abuse was not appropriate behaviour for a nurse.

The witness testified that following her meeting with the Member, she, was on a path to save her [relationship]; however, [Patient B] used anger tactics, and asked “don’t you trust me”, to get [Patient A] to stop objecting to the relationship. She stated that [Patient B] switched to Facebook messaging rather than texting in order to keep the texts hidden. She stated that by November she was a mess and decided “If he is going to be friends with her, I’m going to have to be too”. She reached out to the Member once more and arranged for them to meet in early December. The witness stated that their conversation was superficial; however, the Member did apologize for not giving up the friendship with [Patient B]. The witness stated that she told the Member “if I found out now you were having sex with my [spouse]…I would be very angry”.

The witness testified that she decided to give herself to the end of the year and told herself “no more trusting blindly, I need to know”. She indicated [Patient B] was going to a convention in [ ] and the Member was also going there with friends. She placed a recording device in the vehicle [Patient B] took to the airport and the next day retrieved the device from his car. The witness stated that she listened to the two hour recording and heard “having bleeding the last time we had sex” and that he was trying to convince her to travel with him but that “Sex was too wild and loud to go on a trip with people”.

The witness testified that in January 2016 “I was a mess” and she had to figure out what to do with this second catching. She was emotionally weaker but decided to give [Patient B] another chance. She challenged him again when he returned home from [the convention]. He denied it at first but later admitted he was still in the relationship. The witness indicated that she gave [Patient B] an ultimatum, i.e. she would give it another shot provided he gave up all contact with the Member.

The witness testified that it took a few weeks for [Patient B] to make up his mind and that his response was he wanted a three-way relationship. She then testified although she did not want that, but she finally broke down and agreed to a polyamorous relationship. She testified that [Patient B] made no effort to hide his relationship with the Member; he would stay at the Member’s house, stay in the evenings until 2:00 a.m., and frequently on Saturdays would have date nights with the Member. The witness stated that she requested another meeting with the Member in order to clear the air, but that the Member refused.

The witness testified that she sought counselling to help her deal with this three-way relationship and that the counsellor helped her to realize the arrangement was not right for her. She testified it took a few weeks for her to get up the courage but told [Patient B] on April 1, 2016 that the arrangement had to stop. The witness testified that [Patient B] refused to make a decision so she decided to give him more time. She gave him a final ultimatum that she would not go past their 10-year anniversary which was on June 24, 2016. She testified that she did not receive an answer from [Patient B] and as such made the decision that it was done. She stated that it took her some time to activate her decision and in early August 2016, she got the courage to kick [Patient B] out. She stated that [Patient B] stayed at the Member’s house for the next five months.

The witness testified about the impact that the relationship between [Patient B] and the Member had on her personally and on her [child]. She testified that because everyone in the [ ] community knew about the sexual relationship, she was uncomfortable accessing medical care there. She testified that she did not get her period for 2 to 3 cycles during this time and should have received medical attention. She stated that she ultimately sought out a clinic in [ ] to look after her care.

The witness testified that she had [Patient B] take their [child] to all medical appointments in the fear of having any contact with the Member or the Member’s [ ], who was their assigned doctor at the hospital. She stated that after she caught [Patient B] for the third time, she decided to explain the situation to her [child]. Her [child’s] response was “oh, yes, how could you trust him, he would just do it again”. Her [child] did not see [Patient B] for one and a half months after they moved out of the home. The witness testified that the three-way relationship and all it encompassed was an extremely low point in her life. She has spent a lot of time healing from this affair and taking action to report it to the authorities was a step in regaining her strength.

The witness was honest, consistent and clear in her testimony surrounding the events of [Patient B’s] sexual relationship with the Member and the impact this affair had on her and her [child]. She had excellent memory and very good recall. The witness was forthright and credible in her testimony.

Witness #4 – Dr. Ruth Gallop (“Dr. Gallop”)

College Counsel tendered Dr. Gallop as an expert witness, qualified to give opinion evidence on the Standards of Practice of the nursing profession and boundary violations of the Nurse-Client Relationship Standard.

The Panel reviewed Dr. Gallop’s Curriculum Vitae (Exhibit 18) which detailed her extensive knowledge and experience in this area. Dr. Gallop testified that she had developed expertise in nurse-patient relationships and prepared guidelines and teaching modules on boundary violations. Dr. Gallop has been an expert witness for the College since 1993 and has appeared as an expert on nursing, impact on sexual abuse, and on the scope of professional practice and the nature and limits of the nurse-client relationship. The Panel was satisfied that she is qualified as an expert to give opinion evidence on the Standards of Practice for the Panel’s consideration.

Dr. Gallop stated that in preparation for the hearing she was sent a hypothetical scenario which she described to the Panel. Dr. Gallop’s overview of the factual scenario was that [Patient A & B] and their child were [patients] at the health care centre. The Member was their primary care practitioner and there was no previous relationship with the [patients]. [Patient B] formed a sexual relationship with the Member which went on for some period of time, throughout which [Patient A] attempted to salvage the [relationship]. There was no attempt to shift [Patient A’s] medical care to another health care provider.

With respect to the sexual relationship between the Member and [Patient B], the expert opined that this was a clear case of sexual abuse of a [patient] by a member. She stated that any sexual contact between a member and a [patient] is sexual abuse; it does not matter if the relationship is consensual.

Dr. Gallop referred to the Code and the College Standards:

s1.(3) of the Code, states that

“sexual abuse” of a patient by a member means:

(a) sexual intercourse or other forms of physical sexual relations between the member and the patient;

(b) touching of a sexual nature of the patient by the member; or

(c) behaviour or remarks of a sexual nature by the member towards the patient.

Dr. Gallop referenced the College’s Practice Standard, Therapeutic Nurse-Client Relationship, 2006.

#3 – Maintaining Boundaries states that:

Nurses are responsible for effectively establishing and maintaining the limits or boundaries in the therapeutic nurse-client relationships:

h) ensuring that co-existing relationships do not undermine the judgment and objectivity in the therapeutic nurse-client relationship.

#4 Protecting the client from abuse that states:

Nurses protect the client from harm by ensuring that abuse is prevented, or stopped and reported. The nurse meets the standard by:

d) not entering a friendship, or a romantic, sexual or other personal relationship with a client when a therapeutic relationship exists;

e) ensuring that after the nurse-client relationship has been terminated, 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

h) not engaging in behaviours with a client or making remarks that may reasonably be perceived by other nurses and/or others to be romantic sexually suggestive, exploitive and/or sexually abusive.

The expert witness in offering her opinion spoke to the impact the sexual relationship between [Patient B] and the Member had on the entire family. She stated that as the primary health care provider to the family, the Member would look after the child’s care, as well as [Patient A’s] care. [Patient A] was so traumatized by the affair that she avoided seeking medical attention at the Clinic and had [Patient B]take their child to all the appointments.

The expert witness further opined that any form of socialization with a [patient] is a form of a personal relationship and that the Nurse-Client Relationship Standard is very clear this would be a breach of the Standard.

The Panel accepted the evidence of the Expert Witness. She was credible, knowledgeable, and an informed expert on nursing standards.

Final Submissions

College Counsel submitted this is a case involving profoundly serious breaches of the nurse-client relationship on a spectrum from being crossed without being violated to a “case of extreme abuse”. College Counsel submitted that the Panel should rely on all of the evidence for the findings of a breach.

With respect to [Patient B], College Counsel submitted that he came across as a plain-spoken individual and there was no reason to think he was embellishing his evidence; if anything, the contrary was true as he was minimizing his recollection or describing no more than strictly necessary. The witness attended the hearing not out of vindictiveness, but as an acknowledgement of the harm he had caused and the importance of [Patient A’s] healing.

College Counsel submitted that the evidence be accepted at face value.

The Member is deemed to deny the allegations, however, she chose not to attend and dispute the evidence, thus there are no competing versions of the events and as such there is no reason to doubt either the reliability or honesty in assessing the credibility of all the witnesses.

College Counsel submitted that the Panel had been provided with the first hand evidence of [Patient B] of a sexual relationship between himself as a patient and the Member, that included intercourse, and oral sex on a regular basis with a frequency of multiple times per week during the period from the spring of 2015 carrying into 2016.

[Patient B] referred to the frequency of the sex having tapered off during the later portion of the relationship in August 2016; however, Counsel submitted that this does not matter because [Patient B] was still the Member’s patient the entire time or at least to the summer of 2016. College Counsel submitted that the health records (Exhibit 6) documented the care provided to the patient from May 2015 to August 2015. The witness acknowledged that he was not good with dates and was content to rely on [Patient A’s] recollection of the dates. College Counsel submitted that the documents collaborated general time lines.

College Counsel submitted that [Patient A] came as a witness three and a half years after having confronted [Patient B]. She has reflected and gained insight, however she was not able to give direct evidence of the relationship. The facts she provided were about her interactions with the Member. The witness was frank that the Member had expressly admitted having sex with [Patient B]. There was no doubt in [Patient A’s] mind that the premise for meeting with the Member was to discuss how to move forward from the affair her [spouse] had with the Member.

College Counsel submitted that the evidence of [Witness 1] provided context and background that is helpful in understanding the Clinic. She also confirmed the patient/nurse relationship between the Member and [Patient B] through the documentary evidence. This witness gave evidence of an admission by the Member at their last meeting on June 7, 2017 of two-way fantasy sex. College Counsel submitted that any remarks of a sexual nature towards a [patient] are a violation of statutory provisions of the Code.

Decision

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

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), 2(a), 2(b), 2(c) (i), (ii), (iv), (v), 2(d), 3(a), 4(a), 4(b), 4(c), 4(d) (i), (ii), (iv), (v) and 4(e) in the Notice of Hearing. With respect to Allegation 4, the Panel finds that the Member engaged in conduct or performed an act or acts relevant to the practice of nursing that, having regard to all the circumstances, would be regarded by members of the profession as disgraceful, dishonourable and unprofessional in that she sexually abused a patient, maintained a sexual/personal relationship with a patient that caused distress to the patient’s spouse, failed to transfer the care of the patient and his family members while carrying on an affair with the patient, and verbally and emotionally abused a patient when she continued to maintain the sexual relationship with the patient’s [spouse], knowing that the affair was a source of distress to her [patient].

The Panel makes no finding with regard to Allegations 2(c) (iii) and 4(d) (iii).

Reasons for Decision

College Counsel presented four witnesses, including an expert witness, and 21 exhibits to support the allegations. The Panel assessed the credibility of the witnesses by taking into account appearance and demeanour of the witnesses, their capacity to remember the events, the probability and reasonableness of their evidence and their interest in the outcome of this hearing.

With respect to Allegation 1(a), the evidence of [Witness 1] is supported by documentary evidence that [Patient B] was a patient of the Member during the period the events took place. The evidence of [Patient B] accepted by the Panel established that the Member engaged in sexual intercourse, and oral sex three or more times per week with her [patient] during a period that the Member was his health care provider. The Panel accepted the opinion of the expert witness tendered by the College that any sexual contact between a member and a [patient] is sexual abuse, regardless of whether or not it is consensual sex, and is an act of professional misconduct as provided in subsection 51(1)(b.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended.

With respect to Allegation 2(a), the Panel accepted the opinion of the expert witness that the sexual relationship between the Member and [Patient B] which he admitted to, was a clear violation of the College’s Professional Standard, Therapeutic Nurse-Client Relationship Standard which states:

4. Protecting the client from abuse.

Nurses protect the client from harm by ensuring that abuse is prevented, or stopped and reported.

The nurse meets the standard by:

d) not entering a friendship, or a romantic, sexual or other personal relationship with a client when a therapeutic relationship exists.

With respect to Allegation 2(b), the Panel heard from [Patient A] that she had a meeting with the Member at which she requested the Member to discontinue her relationship with [Patient B]. [Patient A] reached out to the Member to get together for coffee a few weeks after she was aware of the relationship to talk “woman to woman”, asked for her to give up the relationship, and the Member agreed to do so. The witness testified about her attempt to have another meeting with the Member when the polyamorous relationship began, but that the Member refused to meet with her.

With respect to Allegation 2(c) (i), (ii), (iv), (v), the Panel accepted the evidence of [Patient B] who testified that he and the Member were friends outside of their professional activity, they got together for dinner and he took the Member’s son hunting quite a bit. [Patient A] testified that when the friendship between the Member and her [spouse] developed, she had social interaction with the Member as well. [Patient B] and [Patient A] both testified that [Patient B] took the Member’s son hunting on occasion. [Patient A] gave testimony about text messages between [Patient B] and the Member and provided documentary evidence of same. [Patient A] also gave testimony that she met with the Member early in December 2015, had a few beers and just talked. All these interactions were a violation of the Therapeutic-Nurse Client Relationship Standard as opined by the expert witness who stated “socializing is a form of a personal relationship”.

With respect to Allegation 2(d), the evidence given by [Patient A] established that the issue of the Member continuing as the family’s health care provider was discussed at a meeting [Patient A] arranged with the Member. This meeting took place after August 23, 2015 when [Patient B] had agreed to stop the affair with the Member but wanted to continue the friendship with the Member. [Patient A] testified that the Member’s response was “this will have no impact on my ability to give you medical care”. The evidence of [Witness 1], supported by documentary evidence (Exhibit 6) established that the Member provided medical care to [Patient B] up to June 6, 2016.

With respect to Allegation 3, in finding that the Member verbally and emotionally abused a [patient], the Panel accepted the evidence of [Patient A] who testified about the trauma and turmoil she experienced during her suspicions of the sexual relationship and when she ultimately obtained evidence of the relationship and the admission from [Patient B] of the affair. [Patient A] provided documentary evidence in the form of a journal in which she recorded her feelings and emotions throughout this whole ordeal. She also provided documentary evidence of the text messages between the Member and [Patient B]. She testified that she finally received help from a professional counsellor to deal with her anxiety.

With respect to Allegation 4 as a whole, (except (d) (iii) which was not proven), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional. The Member demonstrated a serious disregard for her professional obligations, showed a lack of integrity and lack of judgment when she entered into a sexual relationship with a [patient]. The Member’s conduct casts serious doubt on her moral fitness and inherent ability to discharge the higher obligations the public expects nursing professionals to meet.

Penalty

College Counsel requested that this Panel make an order as follows:

1. Directing 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

College Counsel submitted that in light of the Panel’s findings, the Panel is obliged by s.51(5) of the Code to direct the Registrar to revoke the Member’s certificate of registration immediately and to order the Member to appear before the Panel for an oral reprimand.

College Counsel submitted that the requested penalty takes into account the purposes of penalty which are providing protection of the public, general and specific deterrence, rehabilitation and remediation where appropriate, and public confidence in nursing regulation.

College Counsel submitted four previous discipline panel decisions for the Panel’s consideration.

College v Rodgers (2018). The member in this case acknowledged that he had breached the boundaries of the therapeutic nurse-client relationship with the [patient] when he sent a series of explicit text messages and a video of himself masturbating. The content of the message encouraged the [patient] to masturbate. The penalty ordered was immediate revocation of the member’s certificate of registration, a reprimand within three months and requiring the member to reimburse the College for funding up to an amount of $5,000 provided under s.85.7 of the Health Professions Procedural Code, if the [patient] chose to access the fund.

College v Pankhurst (2009). This is a case where the member admitted to a sexual relationship with a [patient] including sexual intercourse while she was still providing regular nursing care to the [patient]. The penalty ordered was immediate revocation of the member’s certificate of registration and a reprimand within three months.

College v Beauparlant (2014). This is a case where the member and the spouse of the [patient] developed an intimate, personal and non-therapeutic relationship while the member was providing care to the [patient]. The member admitted the misconduct and received a four month suspension, a reprimand, and an imposition of terms, conditions, and limitations on the member’s certificate of registration.

College v Baker (2012). This is a case where the member engaged in an intimate personal relationship with the husband of the [patient] while providing care to the [patient]. The member admitted the misconduct and received a three month suspension, a reprimand, and imposition of terms, conditions and limitations on the member’s certificate of registration.

College Counsel submitted that the issue at hand involved conduct far and above that in the Baker and Beauparlant cases. This case was not one of momentary involuntary attraction, but one of a protracted course of deliberate conduct. The toll this conduct had on [Patient A], the patient’s spouse, was an important aggravating factor.

College Counsel did not request remedial or rehabilitation terms as there is no evidence that the Member is amenable to such terms. The Member’s disregard for the disciplinary process and the fact that she chose not to attend the hearing demonstrates that there is no acknowledgement of any responsibility for her actions or interest in remediation.

Independent Legal Counsel (“ILC”) reminded the Panel that its task is to determine the appropriate order keeping in mind the principles of sanction. The goal which first and foremost is public protection and the maintenance of high professional standards. ILC advised of the need to address specific and general deterrence and remediation. ILC reminded the Panel that College Counsel did not make any submissions regarding remediation as the Member has chosen not to participate in this process.

ILC reminded the Panel that it is required by s.51(5) of the Code to revoke the Member’s certificate of registration and the Member is required to appear before the Panel to be reprimanded.

Penalty Decision

The Panel accepts College Counsel’s Submission on Order and makes the following Order:

1. The Member is directed 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 public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addressed specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation.

The Panel’s first concern is protection of the public which is achieved by the immediate revocation of the Member’s certificate of registration. The revocation and reprimand address specific deterrence of the Member. This penalty achieves general deterrence by sending a very strong message to members of the profession that sexual abuse of patients/clients, boundary violations of the nurse-client relationship standard and verbal and emotional abuse of a [patient] will not be tolerated.

The Member chose not to participate in this process. She has offered no explanation and has shown no insight into her conduct or behaviour. As a result, the Panel has no mitigating factors to consider, nor can it assess the Member’s potential to be rehabilitated.

This order on penalty is mandatory under s.51(5) of the Code.

I, Heather Stevanka, RN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.