College of Nurses of Ontario v. Kathryn O’Connell, 2019 ONCNO 74403

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Mary MacMillan-Gilkinson Chairperson

Margarita Cleghorne, RPN Member

Renate Davidson Public Member

Carly Gilchrist , RPN Member

George Rudanycz, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for

) College of Nurses of Ontario

• and - )

KATHRYN O’CONNELL ) MICHAEL MANDARINO for Registration No. 0462747 ) Kathryn O’Connell

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: March 18, 2019

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on March 18, 2019, at the College of Nurses of Ontario (the “College”) at Toronto. The Member was present and was represented by Counsel.

Publication Ban

Counsel for the College brought a motion, with the consent of Defence Counsel, 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 name of the Client referred to orally or in any documents presented in the Discipline hearing of Kathryn O’Connell or any information that could disclose the identity of the Client, including a ban on the publication or broadcasting of this information.

The Panel considered the submissions of the College and the Member and decided that there be an order preventing the public disclosure of the name of the Client referred to orally or in any documents presented in the Discipline hearing of Kathryn O’Connell or any information that could disclose the identity of the Client, including a ban on the publication or broadcasting of this information.

The Allegations

The allegations against Kathryn O’Connell (the “Member”) as stated in the Notice of Hearing dated December 19,2018 are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that during your employment as a Registered Nurse for the Royal Ottawa Mental Health Centre/Royal Ottawa Health Care Group (the “Hospital”) in Ottawa, Ontario, you contravened a standard or practice of the profession or failed to meet the standards of practice of the profession as follows:

a. between March and July 2017, during your psychotherapeutic relationship with [the Client], you failed to maintain the boundaries of the therapeutic nurse-client relationship, including but not limited to the following:

i. you engaged in a personal relationship with [the Client];

ii. you communicated by text message with [the Client];

iii. you disclosed personal information to [the Client] without a clinical purpose; and/or

iv. you took [the Client] out bowling for his birthday;

b. between January 2016 and July 2017, you failed to document the care you provided to [the Client] in his health record in a timely manner;

c. between January 2016 and July 2017, you provided inadequate care and/or failed to adequately document your interactions, provisions of care and/or treatment interventions of [the Client] in his health record, including but not limited to sparse documentation and failing to complete a plan of care for [the Client]; and/or

d. you failed to complete an incident report after you found [the Client] unresponsive on or about May 17, 2016; and/or

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(37) of Ontario Regulation 799/93, in that during your employment as a Registered Nurse for the Hospital in Ottawa, Ontario, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, as follows:

a. between March and July 2017, during your psychotherapeutic relationship with [the Client], you failed to maintain the boundaries of the therapeutic nurse-client relationship, including but not limited to the following:

i. you engaged in a personal relationship with [the Client];

ii. you communicated by text message with [the Client];

iii. you disclosed personal information to [the Client] without clinical purpose; and/or

iv. you took [the Client] out bowling for his birthday;

b. between January 2016 and July 2017, you failed to document the care you provided to [the Client] in his health record in a timely manner;

c. between January 2016 and July 2017, you provided inadequate care and/or failed to adequately document your interactions, provisions of care and/or treatment interventions of [the Client] in his health record, including but not limited to sparse documentation and failing to complete a plan of care for [the Client]; and/or

d. You failed to complete an incident report after you found [the Client] unresponsive on or about May 17, 2016.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a)(i)(ii)(iii)(iv), 1(b), 1(c), 1(d) and 2 (a)(i)(ii)(iii)(iv), 2(b), 2(c), 2(d) in the Notice of Hearing (Exhibit One). The Panel received a written plea inquiry which was signed by the Member (Exhibit Two). The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College and Counsel for the Member advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts (Exhibit Three), which reads as follows:

THE MEMBER

1. Kathryn O’Connell (the “Member”) obtained a diploma in nursing from Algonquin College in 2004.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on May 20, 2004.

3. The Member was employed at the Royal Ottawa Health Care Group (the “Hospital”) from June 7, 2004 to November 16, 2017, when her employment was terminated as a result of the incidents below.

4. The Member worked at the Hospital as a full-time Outreach Nurse on the Psychiatric Outreach Team. In this role, she identified persons at risk in the community, linked them to services and provided short-term counselling.

THE CLIENT

5. [The Client] was 21-years-old at the time of the incidents. He suffered from substance use (alcohol and drugs) issues.

6. The Client was a resident of the [ ] supportive housing program for transitional youth. As a condition of his housing plan, he was required to meet with an Outreach Nurse.

7. The Member was assigned to care for the Client from January to June 2016 and from March to June 2017.

8. The Client had a history of relapses, and was at a high risk of relapse while in the Member’s care. During the period of January to June 2016, the Client was disinterested in counselling.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Breach of the Therapeutic Nurse-Client Relationship

9. On June 30, 2017, a resident at the [ ] shelter reported to her psychologist that the Client told her he had had a sexual relationship with the Member and another (non-regulated) staff member at the shelter. This report triggered the Hospital to investigate the nature of the relationship between the Member and the Client.

10. The Hospital’s investigation revealed that the Member provided her Hospital cell phone number to the Client. Although the Hospital did not have a formal policy regarding staff use of their employer-provided cell phones, cell phones were intended to be used to schedule appointments and not for ongoing contact with clients.

11. The Hospital obtained the Member’s phone, which contained text messages between the Client and the Member from late April to July 2017. Phone records and texts before this period were not accessible.

12. Between April 27, 2017 and July 25, 2017, the Member and the Client exchanged over 1100 text messages, and spoke on the phone for a total of over 25 hours. The Member and the Client exchanged text messages at all times of the day and night, on the Member’s days off, and during her vacation. At various points, there was near constant communication between the Member and the Client.

13. The text messages were informal, friendly and were not always directly related to the Client’s care. The Member acknowledges that the nature of the text messages were primarily personal rather than professional.

14. The Member repeatedly texted the Client that she missed him and cared about him. The Member provided extra attention to him and texted that he "had a place in her heart". The Member and the Client used nicknames for each other and texted hug and heart emoticons.

15. The Member also made personal disclosures to the Client including: her past use of acne medication, the death of her family members, reference to “family drama,” reference to her belief in God, discussion about how she spent her time on vacation, and reference to not consuming alcohol for a year.

16. The Client commented on the Member’s physical appearance, saying she looked good for her age, and telling the Member he had a crush on her. At times, the Client made comments that were of a veiled sexual nature, which the Member deflected and did not reciprocate. The Member occasionally responded to veiled sexual jokes in a joking manner.

17. The Member took the Client out for coffee on several occasions. Other Outreach Nurses occasionally took clients out for coffee as well.

18. The Member also took the Client bowling for his birthday, which was not a common or appropriate practice among Outreach Nurses. The Member did not consult with other staff about any therapeutic reason for taking the Client out for his birthday, nor did she chart her intention to do so or that she had done so. If the Member were to testify, she would state that her objective was to show the Client that he could celebrate a birthday without alcohol or drugs.

19. The Member did not document or seek advice or input from other staff when the frequency of the text messages and the nature of the relationship became problematic, or when the Client made personal or sexual comments to her.

20. If the Member were to testify she would state that she consulted with a psychologist from the Royal Ottawa Transitional Aged Youth Team that she had concerns with the Client's increased communications, his attachment issues, and tactics for disengaging. The Member admits that she did not document this consultation in the Client’s chart. The Member acknowledges that she did not have the tools to detach or discontinue communications with [the Client]. She further acknowledges that she should have done more to follow-up on her initial discussion including seeking assistance with actual disengagement.

21. The Member’s charting of her interactions did not reference the use of text messaging as a mode of communication, the frequency of the text messaging or much of the information she received from the Client by text message.

22. When the Member was made aware of her employer’s investigation, she was advised by her manager to cease communications with the Client, which was distressing to him.

Standards of Practice regarding the Therapeutic Nurse-Client Relationship

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

24. The TNCR 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.

25. 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.

26. 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 client.

27. If the Member were to testify, she would state that she provided extra attention to the Client due to his precarious position. However, the Member also acknowledges and agrees that she breached the boundaries of the therapeutic nurse-client relationship in her interactions with the Client when she engaged in communications of a personal, non-professional nature with the Client, primarily over text message. The frequency, tone and content of the text messages, including the Member’s personal disclosures, and her socializing with the Client while bowling, demonstrates her breach.

28. If the Member were to testify, she would say that she provided the Client with her Hospital cell phone number as a support system for him and to prevent him from relapsing. This was a common practice amongst the Outreach nurses, although the Member acknowledges that the content and frequency of her communications with the Client far exceeded acceptable or usual communications between Outreach Nurses and their clients.

29. If the Member were to testify, she would state that while she acknowledges that it was a mistake in judgment to reply to the Client each time and to engage in the breadth of communications she did, she feared that if she did not reply, the Client would feel abandoned and rejected, and potentially relapse.

30. The Member further acknowledges that the onus was on her to set and maintain boundaries with the Client and that she failed to do so. In particular, she acknowledges that she did not take appropriate steps to maintain and re-enforce the boundaries, did not consult with colleagues about how to manage the boundaries vis-à-vis this Client, and did not document any of the Client’s attempt to breach the boundaries or her response to those attempts.

Timely and Complete Documentation

31. The Member’s practice was to chart contemporaneously in Microsoft Word on the Hospital’s [ ] Drive, when she was in the community, and then transfer that charting in to the official health record when she had time to access to the electronic charting system.

32. Although the use of charting in Microsoft Word was known and accepted by the Hospital, all charting was required to be uploaded in to the official health record within 24 to 48 hours. If the Member were to testify, she would state that she was not advised, nor was she aware of a policy to update the clinical chart within 24 to 48 hours.

33. The Member failed to upload her charting within 24 to 48 hours. She uploaded her charting weeks or months after the date of the events being documented.

34. The Member would often update the electronic charting system in large blocks. For example, the Member uploaded her charting for interactions with the Client that occurred between March 30, 2016 and June 21, 2016 on March 10 and 11, 2017 (when the Client was reassigned to her), and uploaded her charting from March 16, 2017 to March 27, 2017 on April 20 and 30, 2017.

35. The Member did not upload into the official record any of her charting of interactions with the Client after March 27, 2017, although she did make notes in a Microsoft Word document for April to July 2017.

36. If the Member were to testify she would attribute the lack of timeliness in her documentation to her large case load and the amount of time she spent in the community.

37. The Member did not prepare an adequate care plan for the Client. Her charting was minimal, and did not provide a complete picture of the Client’s emotional, social, and economic experiences, or her plan to connect him to appropriate resources. The Member did not summarize the majority of her interactions with the Client.

Standards of Practice regarding Documentation

38. The College’s Documentation standard states that:

Nursing documentation is an important component of nursing practice and the interprofessional documentation that occurs within the client health record. Documentation — whether paper, electronic, audio or visual — is used to monitor a client’s progress and communicate with other care providers. It also reflects the nursing care that is provided to a client.

39. The standard goes on to say that a nurse meets the standard by “ensuring their documentation of client care is accurate, timely and complete.”

40. The Member acknowledges and agrees that she breached the standards of practice regarding documentation. She acknowledges that her charting of her interactions with the Client were not uploaded into the official health record in a timely way, and that the delay in transcribing her notes in to the health record meant that all members of the health care team were not aware of the care provided or the most recent status of the clients’ health. The Member further acknowledges that she should have made entering her notes into the electronic records system more of a priority, despite her busy schedule visiting various clients at various community agencies. The Member also acknowledges that her charting did not reveal a reasoned care plan or her steps to implement that care plan, and did not reflect the totality of her interactions with the Client.

Failure to Complete an Incident Report

41. On May 17, 2016, the Member found the Client unresponsive in his room at the shelter. She was not at [the shelter] to visit the Client on that day. She had other scheduled client visits.

42. The Member charted the events of that day in the Client’s chart, but she did not complete an incident report.

43. The Hospital’s policy on “Working Safely in the Community” required incident reports to be completed for “violence-related incidents,” which is defined to include conduct that causes physical or psychological injury or harm or gives rise to risk of harm (near miss, hazards or injury). The Hospital’s expectation was that an incident report should have been completed by the Member for the incident with the Client.

44. If the Member were to testify, she would say that, her understanding was that, because the incident happened at the [shelter], [the shelter] would complete an incident report. The Member now realizes that failing to complete the incident report was a breach of the Hospital’s policy and not good nursing practice.

Standard of Practice on Completion of Incident Reports

45. The Member acknowledges and agrees that the standards of practice require nurses to document all interactions with clients and she should have completed an incident report. The Member acknowledges and agrees that she failed to do so, and thereby breached the standards of practice.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

46. The Member admits that she committed the acts of professional misconduct as described in paragraphs 8 to 45 above, in that she contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, as alleged in the Notice of Hearing, as follows:

• 1(a) in that, between March and July 2017, during the course of her psychotherapeutic relationship, she failed to maintain the boundaries of the nurse-client relationship with the Client when she:

o (i) engaged in a personal relationship with the Client;

o (ii) communicated by text message with the Client;

o (iii) disclosed personal information to the Client without a clinical purpose;

o (iv) took the Client bowling for his birthday.

• 1(b) between January 2016 and July 2017, she failed to document the care she provided to the Client in his health record in a timely manner.

• 1(c) between January 2016 and July 2017, she provided inadequate care and/or failed to adequately document her interactions, provisions of care and/or treatment interventions of the Client in his health record, including but not limited to sparse documentation and failing to complete a plan of care for the Client.

• 1(d) in that she failed to complete an incident report after she found the Client unresponsive on or about May 17, 2016.

47. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 2 (a), (b), (c) and (d) of the Notice of Hearing, and in particular, her conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 8 to 45 above.

Decision

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

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)(i)(ii)(iii)(iv), 1(b), 1(c), 1(d) and 2(a)(i)(ii)(iii)(iv), 2(b), 2(c), 2(d) of the Notice of Hearing. As to allegation 2(a)(i)(ii)(iii)(iv), 2(b), 2(c), 2(d), 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.

Reasons for Decision

The Panel considered the Agreed Statement of Facts and the Member’s plea and finds that the evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegations 1(a)(i)(ii)(iii)(iv), 1(b), 1(c) and 1(d) in the Notice of Hearing are supported by paragraphs 8 to 45 in the Agreed Statement of Facts.

Breach of Therapeutic Nurse Client Relationship

The Member, during the course of her psychotherapeutic relationship with the Client, failed to maintain the boundaries of the nurse client relationship when she engaged in a personal relationship with the Client. The Member communicated by text message with the Client and disclosed personal information to the Client without a clinical purpose or rationale. Between April 27, 2017 and July 25, 2017 the Member and the Client exchanged over 1100 text messages, and spoke on the phone for a total of over 25 hours. These text messages would occur at all times of the day and night, during the Member’s day off and during her vacation. The Member acknowledges that the nature of the text messages were primarily personal rather than professional. The Member was also found to have repeatedly texted the Client that she missed him and cared about him, even indicating through text that the Client “had a special place in her heart”. The Member also made personal disclosures to the Client about previous medication she was prescribed, death of family members, referred to her own personal “family drama”, her belief in God, and disclosed that she had not consumed alcohol for a year. The Member took the Client out bowling for his birthday, which was not common or appropriate practice among Outreach Nurses.

The College’s Therapeutic Nurse-Client Relationship standard places the responsibility for establishing and maintaining the limits and boundaries in the therapeutic nurse-client relationship on the nurse, and by the Member crossing this boundary means she, as the care provider is misusing the power in the relationship to meet her personal needs, rather than the needs of the Client. The standard further clarifies that a nurse may cross a boundary in a number of different ways, including:

• self-disclosure that does not meet a specified therapeutic client need;

• failing to ensure that the nurse-client relationship promotes the well-being of the client and not the needs of the nurse;

• giving gifts to the client or engaging in other behaviour that suggests a special relationship between the nurse and the client; and

• entering into a personal or romantic relationship with a client.

Documentation

Between January 2016 and July 2017 the Member failed to document the care she provided to the Client in his health records in a timely manner. During this time period the Member provided inadequate care and/or failed to adequately document in detail about interactions, provisions of care, treatment interventions and a plan of care in the Client’s health record based on his physical, emotional social and economic needs. The Member would often update her electronic charting in large blocks. She failed to upload her charting within 24 to 48 hours. The Member would upload her documentation into the charting system weeks or months after the date of events being documented. On May 17, 2016 the Member found the Client unresponsive in his room at the shelter. She was not at the [shelter] to visit this Client on that day. The Member charted the events of that day in the Client’s chart, but she did not complete an incident report. The Hospital policy and expectation was that an incident report should have been completed by the Member.

Whether it is in paper, electronic, audio or visual form, the College’s Documentation standard states that documentation is an important component of nursing practice and is used to monitor a client’s progress and communicate with other care providers. The nurse meets this standard by ensuring their documentation of the client’s care is accurate, timely and complete.

With respect to Allegation 2, the Panel finds that the Member’s conduct in breaching the therapeutic nurse client relationship and failing to document her clinical findings or concerns in an appropriate manner was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations. The Panel also finds that the Member’s conduct was dishonourable. The Member demonstrated an element of dishonesty and deceit by not documenting or informing other staff of her bowling outing with the Client. The Member did not consult with other staff about the therapeutic reasons for taking the Member out for his birthday, which she states include having a good time without the consumption of alcohol or drugs. If the Member were to testify she would state that that she consulted a psychologist from Royal Ottawa Transitional Aged Youth Team about the increasing communications and attachment issues between the Member and the Client. The Member failed to document this interaction. Transparency is an important component in nursing care. It may be perceived by other members of the profession and public that this consultation may not have occurred because of a lack of documentation. Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The conduct casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

Penalty

Counsel for the College 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:

1. Requiring the Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for five 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.

3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend two meetings with a Regulatory Expert (the “Expert”), at her own expense and within six months from the date of this Order. 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:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

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

1. Professional Standards,

2. Therapeutic Nurse-Client Relationship

3. Documentation

iv. 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;

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

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vi. 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:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into her behaviour;

vii. 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:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. 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:

1. that they received a copy of the required documents, and

2. 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; and

3. All documents delivered by the Member to the College, 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 Counsel for the College and Counsel for the Member.

Counsel for the College referred the Panel to the Joint Submission on Order (Exhibit 4) and asked the Panel to accept the penalty order as it meets the goals of penalty with specific and general deterrence, remediation and rehabilitation components. Counsel for the College submitted that the Joint Submission on Order is consistent with other findings, but noted that there are no perfect parallels.

The mitigating factors in this case were:

• The Member had no prior disciplinary record;

• The Member has been cooperative;

• The Member has participated in an uncontested versus a contested hearing; and

• The Member has taken responsibility for her actions through her admission of professional misconduct.

The aggravating factors in this case were:

• The Client was a young, vulnerable adult with substance abuse addictions, living in a shelter; and

• The Member breached her care boundaries through her outreach role.

The proposed penalty provides for general deterrence through all aspects of the Order. It sends a clear message to the membership about the importance of maintaining therapeutic nurse client boundaries and maintaining appropriate documentation that reflects the clients current needs.

The proposed penalty provides for specific deterrence through the lengthy suspension and the imposition of terms, limits and conditions on the Member’s Certificate.

The proposed penalty provides for remediation and rehabilitation through the reprimand, the two meetings with the Nursing Expert, and a review of three College publications relevant to this case. The Member will return to practice with a greater understanding of her professional obligations.

Overall, the public is protected because the Member’s has a twelve month employer notification period, which will ensure that she is monitored when she returns to practice.

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

College of Nurses of Ontario v. Ralph Tugade (October, 2018). In this case, the member was found to have breached the therapeutic nurse-client relationship with two clients by failing to maintain professional boundaries. One client was a minor. The member would disclose personal information to these clients. He purchased a cellular telephone and rented a hotel room for one of the clients. The member had also participated in a personal relationship with one of the clients. The member breached Confidentiality and Privacy by emailing the minor client from his personal Hotmail accounts. Both clients were in a vulnerable state. The penalty was an oral reprimand, five month suspension, two meetings with a nursing expert and an employer notification for a period of 18 months.

College of Nurses of Ontario v. Farouk Premji (November, 2017). In this case, the member was found to have failed to maintain the therapeutic nurse-client relationship by allowing a minor client to watch an “R” rated movie on his iPad, by showing the client his personal cell phone, which contained family photos, by exchanging phone numbers with the client, initiating personal text messages with the client, and by repeatedly asking the client to provide the contact information of his marijuana supplier. The panel found that the member acted in an unprofessional manner. The penalty was an oral reprimand, three month suspension, two meetings with a nursing expert and employer notification for a period of 12 months.

Counsel for the Member submitted that the Member has demonstrated her willingness to accept responsibility for her actions. She recognizes her attempts to help her Client exceeded the boundaries of the nurse-client relationship. The Member’s counsel submitted that the mitigating factors in this case were:

• The Member is in agreement with the College;

• She has been a Member of this College since 2004;

• The Member has no discipline history with the College; and

• The Member now has insight into her practice and understands the importance of maintaining therapeutic boundaries and completing appropriate and timely documentation.

Independent Legal Counsel’s advice to the Panel was that the Joint Submission on Order should be accepted unless to do so would bring the administration of this process into disrepute or would otherwise be contrary to the public interest. Independent Legal Counsel also confirmed that the Panel should take comfort in the previous decisions provided which reveal that the proposed penalty falls within a reasonable range.

Penalty Decision

The Panel accepts the Joint Submission on Order and accordingly orders:

1. The Member is required to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.

2. The Executive Director is directed to suspend the Member’s certificate of registration for five 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.

3. The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend two meetings with a Regulatory Expert (the “Expert”), at her own expense and within six months from the date of this Order. 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:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

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

1. Professional Standards,

2. Therapeutic Nurse-Client Relationship

3. Documentation

iv. 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;

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

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vi. 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:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into her behaviour;

vii. 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:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. 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:

1. that they received a copy of the required documents, and

2. 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; and

3. All documents delivered by the Member to the College, 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, rehabilitation and remediation, and public protection. The penalty is in line with what has been ordered in previous cases.

I, Mary MacMillan-Gilkinson, 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.