College of Nurses of Ontario v. Godwin Isaac, 2019 CanLII 74473

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Terry Holland, RN Chairperson Dawn Cutler, RN Member Devinder Walia Public Member Christopher Woodbury Public Member

BETWEEN:

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

• and - )

GODWIN ISAAC ) DANIEL LIBMAN for Registration No. AC888572 ) Godwin Isaac

) CHRISTOPHER WIRTH, ) Independent Legal Counsel

) Heard: April 12, 2019

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on April 12, 2019 at the College of Nurses of Ontario (the “College”) at Toronto.

Publication Ban

College Counsel 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 Godwin Isaac or any information that could disclose the identity of the Client, including a ban on the publication or broadcasting of this information.

After considering the submissions of the College, the Panel 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 Godwin Isaac or any information that could disclose the identity of the Client, 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), #2(a), #4(a) and #4(b) of the Notice of Hearing dated February 25, 2019. The Panel granted this request. The remaining allegations against Godwin Isaac (the “Member”) are as follows.

IT IS ALLEGED THAT:

1. [withdrawn];

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 during your employment as a Registered Practical Nurse at [VON Canada], the Facility, in London, Ontario, you contravened a standard or practice of the profession or failed to meet the standards of practice of the profession, in that on or about August 17, 2015:

a. [withdrawn];

b. you employed improper and inadequate clinical technique during the insertion of [the Client’s] catheter;

c. you failed to document your interactions with [the Client] and the provision of care and/or treatment interventions you provided to [the Client];

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(13) of Ontario Regulation 799/93, in that during your employment as a Registered Practical Nurse at the Facility in London, Ontario, you failed to keep records as required, in that on or about August 17, 2015:

a. you failed to document your interactions with [the Client] and the provision of care and/or treatment interventions you provided to [the Client]; and/or

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 during your employment as a Registered Practical Nurse at the Facility in London, 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, in that on or about August 17, 2015:

a. [withdrawn];

b. [withdrawn];

c. you employed improper and inadequate clinical technique during the insertion of [the Client’s] catheter; and/or

d. you failed to document your interactions with [the Client] and the provision of care and/or treatment interventions you provided to [the Client], as required.

Member’s Plea

The Member admitted the allegations set out in paragraphs numbered 2(b) and (c), 3(a) and 4(c) and (d) in the Notice of Hearing. The Panel conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal. College Counsel also presented a written plea inquiry, signed by the Member, dated April 12, 2019.

Agreed Statement of Facts

College Counsel advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts which provided as follows:

THE MEMBER

1. Godwin Isaac (the “Member”) obtained a diploma in nursing in India in 2007.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on August 23, 2013.

3. The Member was employed at the Victorian Order of Nurses (the “Agency”) in London, Ontario from January 2014 to June 2016. In this role at the Agency, the Member provided homecare to clients.

THE CLIENT

4. [The Client] (the “Client”) was 72 years old at the time of the incident.

5. The Client has had an in-dwelling catheter since 2011, which was changed monthly by Agency nurses in her home.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Improper Catheterization Technique

6. On August 17, 2015, the Member attended at the Client’s home to re-insert her catheter, which had become dislodged. He had not previously provided care to the Client.

7. The Member provided care to the Client in her bedroom. The Client laid down near the edge of her bed with her left leg down and her right leg up and bent. The bed was about 1.5 to 2 feet off the ground. The Client spread her legs open as wide as possible, and held up her abdomen.

8. The Member knelt at the Client’s side. The Member spread the Client’s labia and cleansed it, in accordance with appropriate female catheterization procedure. After cleansing the Client’s genitals, the Member picked up and held the catheter in his dominant hand, while his other hand held and spread the Client’s labia.

9. The Member held the catheter with his middle finger and his thumb. The Member and the College agree that the proper grip for catheter insertion is the index finger and thumb.

10. The Member then attempted to insert the catheter four times. He successfully inserted the catheter on the fourth attempt.

11. During his attempts to insert the catheter, the Client could only feel what was happening, she could not see the Member’s hands. The Member gazed at the Client’s vulva intently during the procedure, as if he was really concentrating.

12. On the first attempt, the Member attempted to insert the catheter into the Client’s urethra. At the same time, the Client felt the Member touch her clitoris with his finger. She could feel two different touches at two different places (urethral opening being touched by the catheter tube and clitoris being touched by the Member’s finger).

13. When the Member touched the Client’s clitoris, she jumped. The Member apologized. If the Client were to testify, she would describe the Member’s touching as a fleeting touch, but with enough pressure to make her jump. If the Member were to testify, he would state that he did not intend to touch the Client’s clitoris, and if the touch occurred, it was inadvertent and he did not have a sexual intent to touch her clitoris.

14. On the second attempt, the same thing happened. The Client felt the catheter tube on her urethra and a finger on her clitoris. She jumped again and said words to the effect of, “What are you doing?” Again, the Member apologized.

15. On the third attempt, the same thing happened again. The Client said in a loud and angry voice, words to the effect of, “What are you doing?” The Member again replied that he was sorry.

16. On the fourth attempt, the catheter entered the Client’s urethra right away.

17. The Member did not speak to the Client during the procedure, other than to repeatedly apologize. He did not advise the Client that he was having difficulty.

18. The Client did not report the incident to anyone at the time but she did request that the Agency not send male nurses. Two years later, the Agency sent a different male nurse to provide care to the Client. The Client refused to receive care from the male nurse. When pressed by her daughter about why she did not want the male nurse, the Client disclosed to her daughter what had happened with the Member. The Client then reported the incident to another nurse from the Agency.

19. The Member acknowledges that his catheterization technique was improper and that it should not have taken him four attempts to reinsert the Client’s catheter. The Member recognizes that he utilized an improper grip that caused the Client discomfort and left the impression, to the Client, that the touching was not appropriate for clinical care.

20. If the Member were to testify, he would say that he experienced difficultly inserting the catheter because the Client was tense, positioned low to the ground, and was in a non-clinical setting without proper lighting or assistance. The Member believes the Client was uncomfortable having a male nurse perform the catheterization. However, the Member acknowledges that he was accountable for making the Client feel as comfortable as possible in a vulnerable situation. The Member acknowledges that he could have and should have explained the steps of the catheterization while he was attempting it, and that he was having difficulty inserting the catheter and the reasons why. The Member accepts that, if he had done so, it may have put the Client at ease and/or changed her perception of his intent. The Member acknowledges that his lack of communication with the Client contributed to the Client perceiving the touching as being sexual abuse, when, in fact, it was a failure on the Member’s part to competently perform the procedure.

Failure to Document

21. After completing the catheterization, the Member cleaned up his supplies and left the Client’s home without making any notation in the Client’s chart, which was kept in her home.

22. If the Member were to testify, he would say that he left abruptly after the procedure because he sensed the Client was uncomfortable with him in her home, and because he felt uncomfortable around the Client.

23. The Member acknowledges that he failed to document the care he provided to the Client, which left the Client’s health record incomplete and did not alert other care providers to the issues he had re-inserting the Client’s catheter.

COLLEGE STANDARDS

Professional Standards

24. The College’s Professional Standards provides that each nurse is accountable to the public and responsible for ensuring his or her practice and conduct meets legislative requirements and the standards of practice of the profession. A nurse demonstrates this standard by “providing, facilitating, advocating and promoting the best possible care for clients.” As well, each nurse is expected to continually improve the application of professional knowledge. A nurse demonstrates this standard by “using best-practice guidelines to address client concerns and needs.”

Therapeutic Nurse-Client Relationship

25. The College’s Therapeutic Nurse-Client Relationship (“TNCR”) standard requires that nurses use therapeutic communication when speaking to clients. Specifically, it states that nurses should “use a wide range of effective communication strategies and interpersonal skills to appropriately establish, maintain, re-establish and terminate the nurse-client relationship.”

26. The TNCR also requires that a nurse be “aware of her/his verbal and non-verbal communication style and how clients might perceive it.”

Documentation

27. 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.

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

Catheter Care

29. Female catheterization requires a nurse to touch the genitals of a client. Apart from cleansing the hood of the clitoris, there is no clinical purpose for a nurse to touch the clitoris of a female client during the insertion of the catheter tube. As a matter of the standards of practice to provide competent care, a nurse is required to grip the catheter tube with his or her index finger and thumb, such that none of the nurse’s fingers come into contact with the client’s clitoris.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

30. The Member admits that he committed the acts of professional misconduct as described in paragraphs 6 to 25 above, in that he 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:

• 2(b) in that he employed improper and inadequate clinical technique during the insertion of the Client’s catheter, in that he gripped the catheter tube improperly, that he touched the Client’s clitoris while inserting the catheter tube, and that he failed to communicate what he was doing as he inserted the catheter tube;

• 2(c) in that he failed to document his interactions with the Client and the provision of care and treatment interventions he provided to the Client.

31. The Member admits that he committed the acts of professional misconduct as alleged in paragraph 3(a) of the Notice of Hearing, and in particular, he failed to keep records as required, when he failed to document his interactions with the Client and the provision of care and treatment interventions he provided to the Client on August 17, 2015.

32. The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 4 (c) and (d) of the Notice of Hearing, and in particular, that his conduct was dishonourable and unprofessional, as described in paragraphs 6 to 25 above.

33. With leave of the Discipline Committee, the College withdraws the following allegations:

• 1(a)

• 2(a)

• 4(a)

• 4(b)

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) and (c) and 3(a) of the Notice of Hearing. As to allegations 4(c) and (d), the Panel finds that the Member engaged in conduct that would reasonably be considered by members to be dishonourable and unprofessional.

The Panel allowed the withdrawal of allegations 1(a), 2(a), 4(a) and 4(b).

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 9, 10, 11, 12, 13, 14, 15, 16, 19 and 20 in the Agreed Statement of Facts. The Member employed improper and inadequate clinical technique during the insertion of [the Client’s] catheter.

Allegation # 2(c) in the Notice of Hearing is supported by paragraphs 21, 22 and 23 in the Agreed Statement of Facts. The Member failed to document the interventions with [the Client] and the provision of care and treatment interventions provided to [the Client].

Allegation # 3(a) in the Notice of Hearing is supported by paragraphs 21, 22 and 23 in the Agreed Statement of Facts. The Member failed to keep records as required, in that he failed to document the interactions with [the Client] and the provision of care and treatment interventions provided.

With respect to Allegation # 4(c), the Panel finds that the Member’s conduct in employing improper or inadequate clinical technique during the insertion of [the Client’s] catheter, was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations. Communication and proper clinical technique are crucial to avoiding misconceptions regarding patient care which was delivered in a private area of the client’s home where she would feel especially vulnerable. This Allegation is supported by paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 19 and 20 in the Agreed Statement of Facts.

With respect to Allegation #4(d), the Panel finds the Member’s conduct in failing to document the interactions with [the Client] and the provision of care and/or treatment interventions provided to [the Client] as required, was unprofessional as it demonstrates a serious and persistent disregard for his professional obligations. This Allegation is supported by paragraphs 21, 22 and 23 in the Agreed Statement of Facts.

The Panel also finds that the Member’s conduct in both Allegations #4(c) and #4(d) was dishonourable. He failed to engage in proper communication style and failed to communicate to the Client what he was doing and the problems he was having. The Member acknowledges that if he had had better communication style, it may have put the Client more at ease and she may have regarded his actions differently and not involving intentional improper touching. His conduct was unacceptable and fell well below the standards of a nurse, which the Member knew or should have known. The Member failed to document that he completed the catheterization. The Member acknowledged that he failed to document because he was in an uncomfortable situation and that by leaving the Client’s health record incomplete, he did not alert other care providers to the issues he had re-inserting the Client’s catheter. He admitted that his conduct as described in Allegations #4(c) and #4(d) was dishonourable and unprofessional.

Penalty

College Counsel advised the Panel that a Joint Submission on Order as to Penalty had been agreed upon. The Joint Submission on Order provides 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 two 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 his 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. Documentation,

3. Therapeutic Nurse-Client Relationship,

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 his 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 his certificate of registration;

b) For a period of six months from the date the Member returns to the practice of nursing, the Member will notify his employers in Ontario 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 his 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 College Counsel and the Member’s Counsel.

The parties agreed that the mitigating factors in this case were that the Member had no past discipline history with the College and he had cooperated with the process, including entering into an Agreed Statement of Facts. The Member took responsibility for his actions through a plea and was able to avoid a contested hearing. The Member has shown remorse and understands his mistake and its consequences.

The parties agreed that the aggravating factors in this case were that the Client felt vulnerable in her home during an intimate procedure performed improperly by the Member.

The proposed penalty provides for general deterrence through the suspension of the Member and the publication of the terms, conditions and limitations on the Member’s certificate of registration.

The proposed penalty provides for specific deterrence through a verbal reprimand and suspension of the Member’s certificate of registration for a period of two months.

The proposed penalty provides for remediation and rehabilitation through requiring the Member to attend two meetings with a regulatory expert at his own expense and within six months from the date of this order. Before the first meeting, the Member will review the College publications on Professional Standards, Documentation and the Therapeutic Nurse-Client relationship.

Overall, the public is protected because the session with the Expert will include the development of a learning plan and for a period of six months from the date the Member returns to the practice of nursing the Member will notify his employers in Ontario of this decision.

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

CNO v Lekiqi

Discipline Committee, July 16, 2013

This case involved five male clients. The member was an internationally trained physician who was working as a nurse. The case involved failing to properly assess and/or document care and assessment of a client and breaching therapeutic boundaries. He had had criminal charges laid in this case, but was acquitted after he had been prohibited from practice for four years. This member received a verbal reprimand, had his certificate of registration suspended for two months, had a twelve month employer notification requirement and had specific terms, conditions and limitations attached to his certificate of registration. The length of the member’s suspension in that case, which involved multiple acts of misconduct, took into account the fact that he had been prohibited from practice for four years before the hearing as a result of criminal charges.

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 two 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 his 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. Documentation,

3. Therapeutic Nurse-Client Relationship,

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 his 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 his certificate of registration;

b) For a period of six months from the date the Member returns to the practice of nursing, the Member will notify his employers in Ontario 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 his 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 goal of the penalty decision is to protect the public and enhance public confidence in the College’s ability to self-regulate. The Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. Specific deterrence will be achieved by way of a verbal reprimand and the suspension for two months of the Member’s certificate of registration, while general deterrence will be effected by the suspension and publication of the terms, conditions and limitations on the Member’s certificate of registration. Remediation and rehabilitation will be achieved by a verbal reprimand and two sessions with a regulatory expert.

The penalty meets all the principles of protection and is in line with what has been ordered in similar cases.

I, Terry Holland, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel.