College of Nurses of Ontario v. Stephanie Cosgrove, 2019 ONCNO 132966 — College of Nurses of Ontario Discipline Committee | minicounsel

PANEL: Catherine Egerton Chairperson Sherry Szucsko-Bedard, RN Member Deborah Graystone, NP Member Richard Woodfield Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for ) College of Nurses of Ontario

and - ) STEPHANIE COSGROVE ) KIM PATENAUDE for Registration No: 0465179 ) Stephanie Cosgrove ) CHRISTOPHER WIRTH ) Independent Legal Counsel ) Heard: September 24, 2019

AMENDED DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on September 24, 2019 at the College of Nurses of Ontario (the “College”) at Toronto.

Publication Ban

College Counsel brought a motion pursuant to s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order preventing the public disclosure of the names and clients identifying information referred to orally or in any documents presented in the Discipline hearing of Stephanie Cosgrove or any information that could disclose the identity of the clients, including a ban on the publication or broadcasting of this information.

The Panel considered the submissions of the Parties and decided that there be an order preventing the public disclosure of the names of the clients referred to orally or in any documents presented in the Discipline hearing of Stephanie Cosgrove or any information that could disclose the identity of the clients, including a ban on the publication or broadcasting of this information.

The Allegations

College Counsel advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs #1 (a) and (b) and paragraphs #2 (a) and #4 (a) of the Notice of Hearing dated June 6, 2019. The Panel granted this request. The remaining allegations against Stephanie Cosgrove (the “Member”) are as follows:

IT IS ALLEGED THAT:

a. [withdrawn]; and/or

b. [withdrawn]; and/or

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 the Ottawa General Hospital (the “Hospital”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession as follows:

a. [withdrawn];

b. between August 2016 and September 2017, you engaged in behaviour or remarks of a sexual nature with [Patient A];

c. between August 2016 and September 2017, 2017, you failed to maintain the boundaries of the therapeutic nurse-client relationship in respect of [Patient A], including but not limited to:

i. communicating by text message with [Patient A];

ii. disclosing information about your personal life to [Patient A] without a clinical purpose;

iii. disclosing information to [Patient A] about your colleagues and your workplace; and/or

iv. accepting gifts from [Patient A];

d. between August 2016 and September 2017, you referred to your colleagues and a client in a derogatory manner in text messages you sent to [Patient A]; and/or

e. on or about September 29, 2017, you disclosed personal health information about a client of the Hospital, [Patient B], on your Facebook page and/or posted on the Facebook page of the Canadian Broadcasting Corporation, without consent or authorization; and/or

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(10) of Ontario Regulation 799/93, in that while working as a Registered Nurse at the Hospital, you gave information about a client to a person other than the client or his or her authorized representative except with the consent of the client or his or her authorized representative or as required or allowed by law, in that:

a. on or about September 29, 2017, you disclosed personal health information about a client of the Hospital, [Patient B], on your Facebook page and/or posted on the Facebook page of the Canadian Broadcasting Corporation, without consent or authorization; and/or

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. [withdrawn];

b. between August 2016 and September 2017, you engaged in behaviour or remarks of a sexual nature with [Patient A];

c. between August 2016 and September 2017, 2017, you failed to maintain the boundaries of the therapeutic nurse-client relationship in respect of [Patient A], including but not limited to:

i. communicating by text message with [Patient A];

ii. disclosing information about your personal life to [Patient A] without a clinical purpose;

iii. disclosing information to [Patient A] about your colleagues and your workplace; and/or

iv. accepting gifts from [Patient A];

d. between August 2016 and September 2017, you referred to your colleagues and a client in a derogatory manner in text messages you sent to your [Patient A]; and/or

Member’s Plea

The Member admitted the allegations set out in paragraphs #2 (b), (c) (i), (ii), (iii) and (iv), (d) and (e), #3 (a), #4 (b), (c) (i), (ii), (iii), (iv), (d) and (e) in the Notice of Hearing. 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

College Counsel and the Member’s Counsel advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads, unedited, as follows:

THE MEMBER

Stephanie Cosgrove (the “Member”) obtained a certificate in nursing from Algonquin College in 1996. She then obtained a diploma in nursing from St. Lawrence College in 2004.
The Member initially registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) in 1996. In 2004, the Member resigned her RPN certificate and registered with CNO as a Registered Nurse (“RN”).
The Member was employed at the Ottawa Hospital (the “Hospital”) from October 1997 until she was terminated on December 8, 2017, as a result of the incidents described below.

THE FACILITY

The Hospital is located in Ottawa, Ontario.
Between 2004 and her termination in 2017, the Member was employed as a full-time staff nurse on the in-patient acute mental health unit (the “Unit”).

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

[Patient A]: Breach of the Therapeutic Nurse-Client Relationship

[Patient A]

[Patient A] had a long-standing history of mental illness and suicidal ideations connected to a history of sexual assault. She had been diagnosed with recurrent depression and clustered personality disorder traits.
[Patient A] had been admitted to the Unit numerous times in the approximately ten years prior to the incidents at issue. In her more recent history, [Patient A] was hospitalized in the Unit in 2015, January and February of 2016, August and September of 2016, November of 2016, and in July through September of 2017. The Member was assigned to [Patient A]’s care on occasion during these admissions.
In November 2017, [Patient A] reported to her psychiatrist that she and the Member had engaged in a non-clinical and personal relationship and provided her psychiatrist with copies of text messages and Facebook messages between herself and the Member for the periods of approximately October 2016 to January 2017, June 30, 2017, and for a period of time after her discharge of September 8, 2017.
The Member did not report this contact between herself and [Patient A] to her supervisor or Hospital management.

Non-Clinical Interactions between the Member and [Patient A] from August 2016 to August 2017

[Patient A] is a gay woman. Her sexual orientation was well-known to all Unit staff.
During [Patient A]’s admissions to the Unit in August and September 2016, in November 2016 and July and August 2017, the Member and [Patient A] engaged in a non-clinical relationship. [Patient A] perceived this to be a friendship and a developing romantic relationship.
During [Patient A]’s admissions between August 2016 to August 2017, the Member:

referred to [Patient A] as “muffin” and “sweetie”.
repeatedly told [Patient A] that she ([Patient A]) was good looking;
accepted coffee [Patient A] purchased for her, and ate extra dessert that [Patient A] obtained from the food cart;
visited with [Patient A] when [Patient A] was not her assigned patient;
hugged [Patient A];
told [Patient A] about her personal life including the name of the man she was dating; and
received a gift of a Christmas tree ornament from [Patient A], which she attempted to return to the store.

The Member did not report or document these in-person interactions with [Patient A].
At some point during [Patient A]’s admission between August and September 2016, the Member and [Patient A] kissed. If [Patient A] were to testify, she would state that the Member initiated the kiss while the Member and [Patient A] were in her room alone in the Unit, and that the kiss was brief but with tongue. If the Member were to testify, she would state that [Patient A] grabbed the Member by the collar and pecked her on the lips, and that the Member pulled away and immediately told her that this conduct was inappropriate. If the Member were to testify, she would state that she discussed the incident with a colleague at the time but she did not report that [Patient A] had kissed her to her supervisor nor raise it with the healthcare team.
If [Patient A] were to testify, she would further state that the Member intentionally brushed her breast on more than one occasion, and joked that it was an accident. She would further state that the Member asked about the mechanics of sex between women, and told [Patient A] that if they dated, the Member would treat her well, but that they could not date until one year following [Patient A]’s discharge from the Hospital. The Member denies this alleged touching and these conversations ever occurred.
Unit staff were not permitted to text with admitted patients nor have any communication with discharged patients.
In addition to the in-person interactions, the Member and [Patient A] exchanged text messages from approximately August 2016 to September 2017, while [Patient A] was an admitted patient in the Unit and in the periods between her admissions.
If [Patient A] were to testify, she would state that the Member gave [Patient A] her cell phone number. If the Member were to testify, she would state that [Patient A] contacted her on her cell phone unsolicited, and the Member did not intend to engage with [Patient A] over text message. The Member admits that she did engage with [Patient A] over text message over a period of months and that she did not report her texting with [Patient A] to her supervisor nor take any other steps to cease the text communication with [Patient A]. The Member also admits that she referred to [Patient A] in text messages as “[ ]”, which is not [Patient A]’s first name.
The Member’s text exchanges with [Patient A] included the following:

an October 20, 2016 exchange in which the Member disclosed that she was not ready to return to work (having been off for medical reasons);
on October 26, 2016, in reference to the kiss referred to above, [Patient A] wrote, “Ok. I can’t get u or that kiss out of my head. It is driving me crazy. I have a Psychiatrist, [ ] to talk to but I am sure I promised u I would never tell anyone… That is why I need to talk to u. U r the only one I can talk to put this in perspective. THAT is why I need to talk to you. Call me. Please.” The Member responded, “…You can’t think of that it shouldn’t have happened and no one I mean no one can ever know…” The Member and [Patient A] did not discuss the kiss;
On November 16, 2016, after [Patient A] had been readmitted to the Unit, the Member texted, “Lol just did your RAI” [Resident Assessment Instrument], and [Patient A] responded, “Is that bad?? U prob. Made it bad, didn’t u! Damn u!” The Member responded, “Yup Your fucked! Lol.”;
On November 24, 2016, after [Patient A] had inquired about the sexual orientation and relationship status of a staff member, the Member indicated the staff member was “gay and taken”;
On or about November 26, 2016, the Member texted, “fucking bitch [first name of patient with who [Patient A] shared a room on the Unit]” after the roommate had had an outburst, and texted that, “[a colleague] is an idiot…Fuck her” about the Member’s colleague with whom [Patient A] had had a disagreement;
On December 10, 2016, after [Patient A] was discharged, the Member texted that her colleagues were “daft”, and that she missed “the face plant” (where [Patient A] would press her face on a glass window in the Unit), and that [Patient A] was “very special” and “made her laugh”. [Patient A] purchased a Christmas ornament for the Member and asked if she gotten it;
On December 14, 2016, the Member texted, “Fuck I hate my job”. She also wrote, “The floor is full of ex EDP pts who are all acting out”. In relation to [Patient A]’s former roommate, the Member wrote, “her voice ugh”;
On December 23, 2016, the Member texted [Patient A], “I will never forget you” and “Merry Christmas”;
On January 5, 2017, the Member made personal disclosures about her life, including that her “fucking sister” decided to leave the family holiday celebration early, and that her daughter’s apartment building burned down; and
Also on January 5, 2017, the Member texted, “Miss ya Go get readmitted on the 16 lol.” [Patient A] responded, “I miss u enough to think about it!!!” The Member wrote in response, “It’s hard I know cus I’m that awesome lol”.

In addition to in-person interactions and text messages, [Patient A] contacted the Member using Facebook Messenger, a software program that allows people with Facebook accounts to exchange direct and private messages. [Patient A] and the Member were not “friends” on Facebook. On June 30, 2017, [Patient A] messaged the Member via Facebook Messenger, writing "Guess we can't "like or anything cause then ur hospital friends would know?", and the Member responded: "Yup".

Non-Clinical Interactions between the Member and [Patient A] in August 2017

On August 24, 2017, [Colleague A], found [Patient A] in her office. [Patient A] closed the door behind them and no one else was in the room. [Patient A] showed the staff member a knife. [Patient A] said she wanted to slit her wrists. Eventually, after doing some grounding exercises, [Patient A] calmed and gave the knife to [Colleague A].
The Member texted with [Patient A] relating what occurred on August 24, 2017, including:

The Member texted, “Your acting out is exhausting If you don’t want ECT [electroconvulsive therapy] then d/c yourself Sometimes when ppl are here to long they go from bad to worse I’m taking the night off.” [Patient A] responded, “Wow that was harsh”;
The Member texted, “You are thinking somehow that we are going to be, a couple That is not going to happen I’m sorry I may find women attractive but I would rather a relationship with a man”. “Sorry if it’s harsh but when I spend countless hours trying to build you up and you pull shit like this is gets me so upset… I have depression. I’ve gone they as worse than you ever have but I pull myself up You have to want to help yourself… Me me me what r u doing to help yourself Pulling shit like this or wanting jump? Sorry. I can’t handle PD’s who don’t want to help themselves…Your way too dependent on me and don’t want to help yourself…”
[Patient A] responded, “I slipped up today. I’m sorry. [Colleague A] said I should learn to cry…so I’m bawling. U hurt me so bad. If that was ur intention, it worked. I thought we were both pulling each other up…making each other laugh”; and
The Member wrote, “I didn’t plan to hurt you but when [Colleague A] shows me the blade What am I supposed to think You are in control of your own behavior Your acting out isn’t winning you brownie points. Urg this makes me so nervous…”.

The exchange continued, and the Member eventually told [Patient A] that she had to “make this professional” and asked [Patient A] to erase the messages, which the Member had previously requested.
[Patient A] and the Member ceased to have any further communication or interaction, apart from assigned care.
[Patient A] discussed her emotional response to the above text messages with her healthcare providers in the late summer of 2017, several months before she disclosed her relationship with the Member to her psychiatrist. At the time, she did not inform anyone that she was speaking about the Member, but instead referred to the upsetting conversations with “her friend”.

Applicable Standards of Practice in relation to [Patient A]

CNO’s Therapeutic Nurse-Client Relationship standard (the “TNCR Standard”) places the responsibility for establishing and maintaining the limits and boundaries in the therapeutic nurse-client relationship on the nurse.
The TNCR Standard states:

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

The TNCR 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.

To demonstrate compliance with the standard, nurses should ensure that any approach or activity that could be perceived as a boundary crossing is included in the care plan developed by the health care team and should consult with colleagues and/or the manager in any situation in which it is unclear whether a behaviour may cross a boundary of the therapeutic relationship, especially circumstances that include self-disclosure or giving a gift to or accepting a gift from a patient.
It is a breach of the TNCR standard to engage in personal or romantic relationships with a patient both during the therapeutic relationship, and for a period of time after the termination of the therapeutic relationship.
The onus was on the Member to set and maintain boundaries with [Patient A] and she admits that she failed to do so. She admits that she did not take appropriate steps to maintain and re-enforce the boundaries with [Patient A].
The Member acknowledges and agrees that she breached the boundaries of the therapeutic nurse-client relationship in her interactions with [Patient A] when she

engaged in communications of a personal nature with [Patient A];
communicated with [Patient A] via text message;
disclosed information about her personal life to [Patient A];
disclosed information to [Patient A] about her colleagues and workplace, and in particular, disclosing her opinion about them to [Patient A];
referred to her colleagues and a patient in a derogatory manner;
accepted coffee and desserts from [Patient A]; and
received a gift of an ornament that she did not return to [Patient A].

In respect of the ornament that [Patient A] gave to the Member, [Patient A] purchased the ornament in the Hospital. If the Member were to testify, she would state that [Patient A] left it for the Member unsolicited and that the Member attempted to return it to the gift shop but was unable to do so. However, the Member admits and acknowledges that she did not return the ornament to [Patient A] (who was no longer a patient on the unit at the time) nor did she make clear to [Patient A] that she could not receive gifts from her and that doing so would be a breach of the therapeutic boundaries.
The Member admits and acknowledges that she engaged in behaviour that [Patient A] perceived to be of a sexual nature, and that doing so was a breach of the therapeutic nurse-client relationship. In particular, the Member admits that she allowed a personal relationship to develop with [Patient A], knowing that [Patient A] was attracted to her and desired a romantic and sexual relationship with her. The Member admits that she discussed her own possible attraction to women with [Patient A] in the course of that developing personal relationship. The Member admits and acknowledges that she knew or ought to have known that [Patient A] may perceive the Member’s conduct as flirtation, although the Member denies that she had the intention to flirt with or commence a sexual or romantic relationship with [Patient A] The Member acknowledges that, in the context of the developing inappropriate personal relationship, [Patient A] perceived that the Member would welcome a sexual overture from her, although she denies that she wanted or reciprocated when [Patient A] kissed her.
The Member acknowledges and agrees that her conduct caused emotional harm and confusion to [Patient A].

[Patient B]: Breach of Confidentiality and Privacy

Posting on Social Media re: Death of [Patient B]

On September 27, 2017, [Patient B] was involved in an accident outside of the Hospital. A tree fell on [Patient B] during a storm, resulting in her death. The incident was reported widely in the media.
On September 29, 2017, the Member posted about [Patient B] on her personal Facebook page, with reference to the media reports. The Member posted the following:

She did not die after a heart attack the tree snapped and landed on her head while she was walking from the bus stop. Security ran and pulled the tree off her and performed CPR, im sure she died instantly, but they revived her enough to bring her to the trauma unit at Civic where she died last night. The tree was huge!

The Member made a similar posting on the Facebook page of the Canadian Broadcasting Corporation (“CBC”).
[Patient B] was not the Member’s patient. The Member obtained the information she posted from a colleague. The details of [Patient B]’s death had not been made available to the public when the Member posted on social media.
The Hospital’s Social Media policy required staff to adhere to certain guidelines when the staff’s association with the Hospital was known or identified. In particular, improper use of social media was defined as including the following:

messages that disclose confidential patient information/data; and
using social media to store, post, send or distribute patient or confidential information, copyright material or other content which is subject to third party intellectual property rights.

During the Hospital’s investigation, the Member acknowledged that she should not have posted the information about [Patient B].
The Member admits and acknowledges that information about the cause and manner of [Patient B]’s death was personal health information. She admits that she did not have any professional purpose to access, use or disclose this information to anyone nor did she have consent to do so.
If the Member were to testify, she would state that she was concerned about respecting the patient’s memory when she saw social media posts that she believed contained erroneous information. However, the Member acknowledges that posting personal health information she obtained about the patient was an inappropriate response and that personal health information should never be disclosed without consent or authorization.

Applicable Standards of Practice re [Patient B]

Nurses have both ethical and legal responsibilities relating to access to, use of, and disclosure of patient information. These responsibilities are codified in the Personal Health Information Protection Act (“PHIPA”), and in the CNO’s Confidentiality and Privacy – Personal Health Information practice standard (“Confidentiality and Privacy Standard”), first published in 2004. These publications reflect the long-standing and unwritten standards of practice of the profession regarding access to, use of, disclosure of, and confidentiality of patient information.
As a standard of practice, nurses are

permitted to access information relating to a patient only where the nurse is part of that patient’s health care team, and only where there is a professional purpose to access the information;
responsible for ensuring that they use patient information only for the purposes for which it was collected; and
required to maintain the confidentiality and privacy of patient health information obtained while providing care.

A nurse is not entitled to disclose a patient’s information outside the health team unless the nurse has the patient’s express consent (or otherwise in accordance with PHIPA).
A nurse’s obligation to maintain confidentiality of patient information, however the nurse receives that patient information, continues after the professional relationship has ended, including after a patient’s death.
The Member acknowledges and agrees that she breached the standards of practice relating to access to, use of, and disclosure of patient information when she posted personal health information about [Patient B] on her own Facebook page and that of the CBC without consent or authorization.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member admits that she committed the acts of professional misconduct as described in paragraphs 6-48 above, as follows:

the Member contravened a standard of practice of the profession between August 2016 and September 2017 as follows:

o 2(b) of the Notice of Hearing, in that the Member engaged in a non-clinical and personal relationship with [Patient A] which included discussions that [Patient A] perceived to be of a sexual nature, including a kiss with [Patient A];

o 2(c) of the Notice of Hearing, in that the Member failed to maintain the boundaries of the therapeutic nurse-client relationship in respect of [Patient A] when she communicated by text message with [Patient A], disclosed information about her personal life to [Patient A] without a clinical purpose, disclosed information to [Patient A] about the Member’s colleagues and workplace, and accepted gifts of food, and coffee, and received and failed to return a Christmas ornament from [Patient A];

o 2(d) of the Notice of Hearing, in that the Member referred to her colleagues and a patient in a derogatory manner in text messages she sent to [Patient A]; and

2(e) and 3(a) of the Notice of Hearing, in that the Member contravened a standard of practice of the profession and gave information about a client to a person other than the client or their authorized representative without consent when she disclosed personal health information about [Patient B] on her own Facebook page and posted on the Facebook page of the CBC without consent or authorization.

The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 4(b), (c)(i), (c)(ii), (c)(iii), c(iv), (d) and (e) of the Notice of Hearing, and in particular her conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 6-48 above.
With leave of the Discipline Committee, CNO withdraws the following allegations in the Notice of Hearing:

1(a);
1(b);
2(a); and
4(a).

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.

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 #2 (b), (c) (i), (ii), (iii), (iv), (d), (e), #3 (a) of the Notice of Hearing. As to Allegations #4 (b), (c) (i), (ii), (iii), (iv), (d), (e), 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 #2 (b) in the Notice of Hearing is supported by paragraphs 12, 19, 28, 30, 31, 34 and 49 in the Agreed Statement of Facts. The Panel finds the Member failed to meet the standards of practice of the profession when she engaged in behaviour or remarks of a sexual nature with client [Patient A] between August 2016 and September 2017.

Allegations #2 (c) (i), (ii), (iii), (iv) in the Notice of Hearing are supported by paragraphs 16-20, 22, 23, 31, 32, 33, 35 and 49 in the Agreed Statement of Facts. The Panel finds the Member failed to meet the standards of practice of the profession when she failed to maintain the boundaries of the therapeutic nurse-client relationship in respect of [Patient A] between August 2016 and September 2017. The Member was communicating by text message with [Patient A]; disclosing information about her personal life to [Patient A] without a clinical purpose; disclosing information to [Patient A] about her colleagues and her workplace; and accepting gifts from client [Patient A]. All of these actions demonstrate a breach of the standards of practice of the profession.

Allegation #2 (d) in the Notice of Hearing is supported by paragraphs 19, 22, 32, and 49 in the Agreed Statement of Facts. The Panel finds the Member failed to meet the standards of practice of the profession when she referred to her colleagues and a client in a derogatory manner in text messages she sent to her client, [Patient A] between August 2016 and September 2017.

Allegation #2 (e) in the Notice of Hearing is supported by paragraphs 37, 38, 39,40, 41, 42, 43, 44, 45, 48 and 49 in the Agreed Statement of Facts. The Panel finds the Member failed to meet the standards of practice of the profession when she disclosed personal health information about a client of the Hospital, [Patient B], on her Facebook page and posted this information on the Facebook page of the Canadian Broadcasting Corporation, without consent or authorization on or about September 29, 2017.

Allegation #3 (a) in the Notice of Hearing is supported by paragraphs 37, 38, 39, 41, 42, 43, 46, 47, 48 and 49 in the Agreed Statement of Facts. The Panel finds the Member committed an act of professional misconduct when she disclosed personal health information about a client of the Hospital, [Patient B], on her Facebook page and posted on the Facebook page of the Canadian Broadcasting Corporation, without consent or authorization as required or allowed by law.

Allegations # 4 (b), (c), (d) and (e) in the Notice of Hearing are supported by paragraphs, 12, 16-20, 22, 23, 30, 31, 32, 33, 34, 35, 49 and 50 in the Agreed Statement of Facts. The Panel finds that the Member engaged in conduct that would reasonably be considered by members of the profession to be disgraceful, dishonourable and unprofessional as it demonstrated a serious and persistent disregard for her professional obligations.

The Member failed to maintain the boundaries of the therapeutic nurse-client relationship in respect of [Patient A], when she engaged in behaviour of a sexual nature with [Patient A]; communicated by text message with [Patient A], failed to report text messaging between the Member and [Patient A], disclosed information about her personal life to [Patient A] without a clinical purpose, disclosed information to [Patient A] about her colleagues and her workplace and accepted gifts from [Patient A]. The Member also referred to colleagues and a client in a derogatory manner in text messages sent to [Patient A]. For all of these reasons, the Member’s conduct was unprofessional. The Member did not respect personal health information for [Patient B] when she disclosed personal health information about a client of the Hospital, [Patient B], on her Facebook page and posted on the Facebook page of the Canadian Broadcasting Corporation, without consent or authorization.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit through the disclosure of personal information without consent; referring to patient [Patient A] in text messages as “[ ]” and asking patient [Patient A] to erase text messages. The Member knew or ought to have known that her conduct would be unacceptable and fell below the standards of a professional.

Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The conduct of failing to maintain the boundaries of the therapeutic nurse-client relationship, criticizing patient [Patient A] in a harsh manner and lacking empathy, casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

Penalty

College Counsel and the Member’s Counsel 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:

Requiring the Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for 8 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in the practising class.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend 2 meetings with a Regulatory Expert (the “Expert”), at her own expense and within 6 months from the date that this Order becomes final. To comply, the Member is required to ensure that:

i. The Expert has expertise in Nursing Regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules, decision tools and online participation forms (where applicable):

Code of Conduct,
Professional Standards,
Therapeutic Nurse-Client Relationship, and
Confidentiality and Privacy - Personal Health Information;

iv. Before the first meeting, the Member reviews and completes CNO’s self-directed learning package, One is One Too Many, at her own expense, including the self-directed Nurses’ Workbook;

v. Before the first meeting, the Member reviews Circle of Care: Sharing Personal Health Information for Health-Care Purposes, as released by the Information and Privacy Commissioner of Ontario;

vi. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, and online participation forms and Nurses’ Workbook;

vii. The subject of the sessions with the Expert will include:

the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;

viii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into her behaviour;

ix. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her certificate of registration;

b) For a period of 12 months from the date the Member returns to the practice of nursing, the Member will notify her employers of the decision. To comply, the Member is required to:

i. Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

ii. Provide her employer(s) with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;

iii. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:

that they received a copy of the required documents, and
that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
All documents delivered by the Member to the CNO, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Penalty Submissions

Submissions were made by College Counsel.

The mitigating factors in this case were:

The Member has no prior history of discipline with the College;
The Member has taken responsibility for her conduct through the admissions of her conduct;
The Member participated in an uncontested hearing avoiding a lengthy contested hearing;
The Member admitted her conduct of public disclosure of personal health information of [Patient B] to her employer.

The aggravating factors in this case were:

[Patient A] was an extremely vulnerable mental health patient seeking in-hospital treatment;
The Member engaged in a non-clinical relationship with [Patient A] for a lengthy period of time during and in between hospital admissions;
The Member engaged in communication with [Patient A] in a covert manner, made attempts to conceal the relationship by referring to her by a different name and asking her to delete the text messages;
The Member undermined staff responsibility and relationships with [Patient A] by making derogatory comments about staff in text messages to [Patient A];
The Member engaged in a series of self-directed and inappropriate text messages with patient [Patient A] following a “knife” incident causing significant emotional harm to the patient;
The Member disclosed personal information on [Patient B] on a publicly available CBC Facebook page without consent or authorization.

The proposed penalty provides for general deterrence through the 8 month suspension of the Member’s certificate of registration and 12 month employer notification of this decision. This sends a strong message to members that crossing the boundaries of a therapeutic nurse-client relationship and the disclosure of personal health information without consent or authority will not be tolerated by the College.

The proposed penalty provides for specific deterrence through the oral reprimand, 8 month suspension of the Member’s certificate and the 12 month employer notification of this decision.

The proposed penalty provides for remediation and rehabilitation through the meetings with a Regulatory Expert and review of the Professional Standards, Code of Conduct, Therapeutic Nurse-Client Relationship and Confidentiality and Privacy – Personal Health Information along with review of Circle of Care: Sharing Personal Health Information for Health-Care Purposes.

Overall, the public is protected because the 12 month employer notification provides opportunity for the Member’s conduct to be monitored after meeting with the Regulatory Expert. This will ensure the Member has learned from her mistakes and has made the needed changes to her practice.

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

CNO v O’Connell (Discipline Committee, 2019). This case involved a community outreach nurse providing counselling and psychotherapeutic support in the community and also breached the therapeutic nurse-client relationship. The patient was suffering from substance misuse issues and the member engaged in multiple text messages and hours of telephone conversations while engaging in a personal relationship with her patient over a 3 month time period. The penalty was a 5 month suspension of certificate, 12 month employer notification and 2 meetings with a Regulatory Expert.

CNO v Kaufman (Discipline Committee, 2012). This case involved the member disseminating personal health information and her personal opinion related to her patient on a publicly accessible internet page. The member also shared personal health information related to her patients with her husband. The member in this case did not attend the hearing and therefore was considered to have denied the allegations. The penalty in this case was a 4 month suspension of the member’s certificate, 2 meetings with a Regulatory Expert and a 12 month employer notification.

The Member’s Counsel agreed with the Joint Submission on Order but emphasized mitigating factors as follows:

The Member had been an RPN from 1996 and an RN since 2004;
The Member had no prior disciplinary history with the College;
The Member cooperated with the College avoiding a lengthy hearing;
The Member understands the importance of maintaining nurse-client boundaries.

Penalty Decision

The Panel accepts the Joint Submission on 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 Executive Director is directed to suspend the Member’s certificate of registration for 8 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in the practising class.
The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

i. The Expert has expertise in Nursing Regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;

Code of Conduct,
Professional Standards,
Therapeutic Nurse-Client Relationship, and
Confidentiality and Privacy - Personal Health Information;

iv. Before the first meeting, the Member reviews and completes CNO’s self-directed learning package, One is One Too Many, at her own expense, including the self-directed Nurses’ Workbook;

v. Before the first meeting, the Member reviews Circle of Care: Sharing Personal Health Information for Health-Care Purposes, as released by the Information and Privacy Commissioner of Ontario;

vi. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, and online participation forms and Nurses’ Workbook;

vii. The subject of the sessions with the Expert will include:

the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;

viii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into her behaviour;

b) For a period of 12 months from the date the Member returns to the practice of nursing, the Member will notify her employers of the decision. To comply, the Member is required to:

i. Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

ii. Provide her employer(s) with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;

iii. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:

that they received a copy of the required documents, and
that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
All documents delivered by the Member to the CNO, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

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 specific and general deterrence through the oral reprimand and 8 month certificate suspension. The 12 month employer notification, meetings with a Regulatory Expert and review of relevant standards provides rehabilitation and remediation and along with ensuring public protection.

College Counsel submitted two cases indicating this penalty is in keeping with precedent and in line with what has been ordered in previous cases. The Panel accepts that this penalty falls within a reasonable range and satisfies all goals of penalty.

I, Catherine Egerton, Public Member, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel.