College of Nurses of Ontario v. Frazer, 2021 ONCNO 119928

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Carly Gilchrist, RPN Chairperson

Karen Goldenberg Public Member Mary MacNeil, RN Member Lalitha Poonasamy Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) GLYNNIS HAWE for

) College of Nurses of Ontario

• and - )

ANNE CATHERINE FRAZER ) MIRIAM LONDON for Registration No. 9917253/IB13372 ) Anne Catherine Frazer

(Resigned) )

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: May 6, 2021

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on May 6, 2021, via videoconference.

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 public disclosure and banning the publication or broadcasting of the name of the patient, or any information that could disclose their identity, referred to orally or in any documents presented in the Discipline Hearing of Anne Catherine Frazer.

The Panel considered the submissions of College Counsel and the Member’s Counsel and decided that there be an order preventing public disclosure and banning the publication or broadcasting of the name of the patient, or any information that could disclose their identity, referred to orally or in any documents presented in the Discipline Hearing of Anne Catherine Frazer.

The Allegations

The allegations against Anne Catherine Frazer (the “Member”) as stated in the Notice of Hearing dated January 13, 2021 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 while practicing as a Registered Nurse at the Royal Ottawa Mental Health Centre in Ottawa, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that:

(a) in or about February 2011 and September 2012, you failed to maintain the boundaries of the therapeutic nurse-patient relationship with respect to [the Patient]; and/or

(b) in or about September 2011 and September 2012, you engaged in a physical and/or romantic relationship with [the Patient].

2. You have committed an act of professional misconduct as provided by sub-section 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and subsection 1(7) of Ontario Regulation 799/93 in that, while employed as a Registered Nurse at the Facility, you abused a client, verbally, physically and/or emotionally in that:

(a) in or about February 2011 and September 2012, you failed to maintain the boundaries of the therapeutic nurse-patient relationship with respect to [the Patient]; and/or

(b) in or about September 2011 and September 2012, you engaged in a physical and/or romantic relationship with [the Patient].

3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while employed as a Registered Nurse at the Facility, you engaged in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional with respect to the following incidents:

(a) in or about February 2011 and September 2012, you failed to maintain the boundaries of the therapeutic nurse-patient relationship with respect to [the Patient]; and/or

(b) in or about September 2011 and September 2012, you engaged in a physical and/or romantic relationship with [the Patient].

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a), (b), 2(a), (b), 3(a) and (b) 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

1. Anne Catherine Frazer (the “Member”) obtained diplomas in nursing from Algonquin College in 1992 and 1999.

2. The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on June 26, 1992. Her RPN Certificate of Registration was suspended for non-payment of fees from May 29, 2000 to February 1, 2013, at which time the Member resigned her RPN Certificate of Registration.

3. The Member registered with CNO as a Registered Nurse (“RN”) on July 30, 1999. The Member resigned her RN Certificate of Registration on November 6, 2019.

4. The Member was employed as a part-time RN in the Forensic Assessment Unit at Royal Ottawa Mental Health Centre at the time of the incidents giving rise to these allegations. She resigned on March 4, 2019 after she disclosed these incidents to her manager.

THE FACILITY

5. The Royal Ottawa Mental Health Hospital (the “Facility”) is located in Ottawa, Ontario.

6. The Facility’s Forensic Program consists of two units: the Forensic Assessment Unit and the Forensic Rehabilitation Unit.

7. The patients on the Forensic Assessment Unit have been found not criminally responsible due to a mental disorder (NCR). Instead of being sent to correctional facilities, inmates who are found NCR in criminal court are transferred to the Facility (or hospitals or facilities with similar oversight and treatment capacities).

8. Patients graduate from the Forensic Assessment Unit to the Forensic Rehabilitation Unit once they are considered stable. The ultimate goal for all of the patients in the Facility’s Forensic Program is reintegration into the community.

THE PATIENT

9. [The Patient] (the “Patient”) was a 35-year-old male with diagnoses of schizophrenia, bipolar disorder, antisocial and paranoid personality traits, and substance use disorder. He was admitted to the Facility’s Forensic Assessment Unit on January 7, 2011. He had been found unfit to stand trial for an assault and required antipsychotic medication and treatment at the Facility before being reassessed for NCR eligibility. He was found NCR due to a mental disorder on March 14, 2011.

10. The Patient had a criminal record, including a prior assault conviction as well as several young offender convictions. Along with anger management and gambling problems, the Patient had been previously hospitalized for his psychiatric conditions and had a history of suicide attempts. At the time of his admission to the Facility, he was assessed by the attending physician as having minimal insight into his illnesses and the need for treatment.

11. On June 20, 2011, the Patient was transferred to the Facility’s Forensic Rehabilitation Unit. On September 13, 2011, he was discharged and entered Hampton Lodge group home as a condition of his community release in accordance with an order issued by the Ontario Review Board (“ORB”). At the time of his discharge, the Patient was flagged by the Facility as “a significant threat to the community” because of missed medications and/or the risk of relapses given his guarded long-term prognosis and continued lack of insight. As such, the community placement at Hampton Lodge was recommended because it was a 24-hour supervised group home.

12. As a condition of his discharge from the Forensic Assessment Unit, the Patient was required by the ORB to live in supervised housing only. The Patient did not qualify for independent living. To ensure he was receiving regular medication dosages and appropriate ongoing assessment of his mental stability, the Patient was required to remain in supervised housing until the ORB reassessed his privileges.

13. The Member was part of the Patient’s health care team at the Facility in various capacities from January 2011 until his transition to Hampton Lodge in September 2011. The Member was the Patient’s primary care nurse during certain shifts and provided him general care during others.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

14. In or around February 2011, the Member documented her belief that the Patient had developed romantic feelings for her and that the Patient was “falling in love with [her].” The Member advised the Patient that there was “a line between [him] and [her]”, referring to the therapeutic nurse-patient boundary.

15. In or around March 2011, the Member’s feelings toward the Patient changed. The Member developed more than a “fleeting crush” for the Patient and wanted to enter into a committed relationship with him, with the possibility of a life together.

16. In or around March 2011, the Member and the Patient decided that they would start a sexual relationship upon the Patient’s discharge from the Facility’s inpatient Forensic Assessment Unit.

17. In or around March and April 2011, the Member began spending greater social time with the Patient during shifts when she was not specifically assigned as his primary care nurse, including playing Scrabble or chess and talking with him socially in the lounge area. The Patient grew more emotionally dependent on the Member as their personal relationship developed.

18. On June 20, 2011, the Patient was transferred to the Facility’s Forensic Rehabilitation Unit, at which time the Member gave the Patient her personal phone number so they could keep in contact. The Member and the Patient maintained social contact by telephone while he was in the Forensic Rehabilitation Unit.

19. The Patient was discharged from the Forensic Rehabilitation Unit on September 13, 2011. At this time, he began spending extended periods of time at the Member’s residence, and their relationship became romantic, physical and sexual.

20. The Patient stayed at the Member’s residence on weekends, for extended periods during the week, and on one occasion travelled with her on a five-day road trip. He did so despite the ORB disposition that the Patient remain in supervised housing as a condition of his discharge from the Facility’s inpatient program. As a result, the Patient missed appointments with his attending psychiatrist and did not receive required medications.

21. The Member and Patient’s romantic relationship continued until the Member ended the relationship in August 2012. The Patient continued to be emotionally dependent on the Member after that time. The Member facilitated this dependence by meeting with the Patient in person and communicating with him by phone.

22. On January 22, 2019, the Member chose to speak with her manager, [the Manager] with respect to her relationship with the Patient. The Member chose to disclose to [the Manager] the information which gives rise to these allegations. If the Member were to testify, she would say that she wanted to take responsibility for her actions.

23. The Member acknowledges that her conduct during the Patient’s treatment period at the Facility breached the standards of practice respecting therapeutic nurse-patient boundaries, and constituted abuse. She acknowledges that the romantic, physical and sexual relationship she engaged in with the Patient while he was in the outpatient program at Hampton Lodge were also in breach of the standards of practice, and abuse.

STANDARDS OF PRACTICE

24. CNO has published nursing standards to set out the expectations for the practice of nursing. CNO’s published standards inform nurses of their accountabilities and apply to all nurses regardless of their role, job description or area of practice.

Professional Standards

25. CNO’s Professional Standards provides that each nurse is responsible for ensuring that their conduct meets the standards of the profession.

26. Nurses are expected to take responsibility for their actions and the consequences of those actions. Nurses are also accountable for conducting themselves in ways that promote respect for the profession as a whole and reinforce public confidence in the integrity and respectability of its members.

27. This practice standard indicates that a nurse demonstrates these expectations by, among other actions:

a. ensuring practice is consistent with CNO’s standards of practice and guidelines as well as legislation;

b. maintaining boundaries between professional therapeutic relationships and non-professional personal relationships; and

c. providing, facilitating, advocating and promoting the best possible care for patients.

Therapeutic Nurse-Client Relationship Standard

28. CNO’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) provides guidance on establishing and maintaining appropriate nurse-patient boundaries.

29. The TNCR Standard specifies that therapeutic nursing services “contribute to the [patient’s] health and well-being” and that meaningful relationships are built on a foundation of “trust, respect, empathy and professional intimacy” that requires an acknowledgement of the “appropriate use of power inherent in the care provider’s role.”

30. The TNCR Standard notes that establishing positive and empathic therapeutic relationships with patients is at the core of the practice of nursing. The TNCR Standard further explains that setting appropriate boundaries with patients is an important aspect of a care provider’s role.

31. More specifically, the TNCR Standard elaborates that nurses meet the standard for patient-centred care by working with patients to ensure that all professional behaviour and actions meet the therapeutic needs of the patient. Nurses meet the standard by, among other actions:

a. setting and maintaining appropriate boundaries within the relationship;

b. being aware of his/her verbal and non-verbal communication style and how [patients] might perceive it; and,

c. committing to being available to the [patient] for the duration of care within the employment boundaries and role context.

32. It is never acceptable for a nurse to enter into a romantic, sexual or personal relationship while actively involved in providing care to a patient.

33. The TNCR Standard in force at the time of these incidents directed nurses to be cautious about entering into a personal relationship – such as a friendship or romantic or sexual relationship – with former patients after the termination of the formal therapeutic relationship, particularly in circumstances where such a personal relationship could have a negative impact on the future care of the patient and could exploit the trust and professional intimacy that developed during the currency of the nurse-patient relationship. The TNCR Standard also required that the Member take steps to make clear to the patient that any such relationship was no longer therapeutic.

34. The Member did not give due consideration to these factors before entering into a romantic and sexual relationship with the Patient after the termination of the therapeutic relationship. The Member acknowledges that the relationship had a negative impact on the future care of the Patient, and that their continuing relationship was based on the trust and professional intimacy that was developed during the nurse-patient relationship. She further acknowledges that she did not take any steps to clarify with the Patient that the relationship was no longer therapeutic.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

35. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1-3 of the Notice of Hearing and as described in paragraphs 14-23 above, in that she failed to maintain the boundaries of the therapeutic nurse-patient relationship with respect to the Patient in or about February 2011 and September 2012, and that she engaged in a physical and/or romantic relationship with the Patient in or about September 2011 and September 2012.

36. The Member admits that her conduct contravened the standards of practice of the profession, that she emotionally abused the Patient and that her conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 14-23 above.

College Counsel’s Submissions

College Counsel requested that the Panel accept the Agreed Statement of Facts and submitted that the Member had admitted to professional misconduct as set out in paragraphs 35 and 36 of the Agreed Statement of Facts. With regard to allegations 1(a), (b), 2(a) and (b) the relevant College Standards that were breached were the College’s Professional Standards and the TNCR Standard.

With regard to allegations 3(a) and (b) that the Member’s conduct was disgraceful, dishonourable and unprofessional. The parties agreed that the Member’s conduct was relevant to her practice since the relationship with the Patient began while the Member was part of the Patient’s health care team. Beginning a personal relationship with a psychiatric patient showed disregard for her professional obligations. The Member ought to have known her conduct was inappropriate and harmful to the Patient and brought shame on her and the profession.

The Member’s Counsel made no submissions.

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), (b), 2(a), (b), 3(a) and (b) of the Notice of Hearing. With respect to allegations 2(a) and (b), the Panel finds that the Member emotionally abused a patient. As to allegations 3(a) and (b), the Panel finds that the Member engaged in conduct that would reasonably be regarded 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) and (b) in the Notice of Hearing are supported by paragraphs 14-35 in the Agreed Statement of Facts. The Member’s conduct was a clear breach of the TNCR Standard in that the Member did not set appropriate boundaries with the Patient. She allowed an initial therapeutic relationship to evolve into a personal relationship with the Patient, making plans in March 2011 with the Patient to start a sexual relationship upon the Patient’s discharge from the Facility’s inpatient Forensic Assessment Unit. In or around March and April 2011, she also spent additional time socially with the Patient while she was on shift and in June 2011 shared her personal phone number with the Patient. In September 2011, she allowed the relationship to become romantic, physical and sexual. None of these activities were part of the therapeutic plan of care and therefore were also a breach of the Professional Standards.

Allegations 2(a) and (b) in the Notice of Hearing are supported by paragraphs 14-23 and 35 in the Agreed Statement of Facts. The Member admitted she emotionally abused the Patient. The Panel sought Independent Legal Advice regarding the distinction between verbal, physical and emotional abuse as it applied to this case. The Panel was advised that its findings need to be made based only on the Agreed Statement of Facts and the Member’s admissions. The Panel considered the facts that the Member fostered and participated in a non-therapeutic relationship with a psychiatric patient that resulted in the Patient becoming emotionally dependent on the Member and thereby potentially undermining his mental health. The Member facilitated and continued this dependence even after the relationship ended by meeting with the Patient in person and communicating with him by phone. The Panel was satisfied that the evidence supported a finding of emotional abuse.

With respect to allegations 3(a) and (b), the Panel found that the Member’s conduct was disgraceful, dishonourable and unprofessional. Her conduct was unprofessional, as she began a romantic relationship with the Patient while she was a member of the Patient’s health care team and ought to have known this was a violation of professional standards. The Member’s disregard for the ORB’s condition was also unprofessional. Her conduct was dishonourable as it demonstrated an element of dishonesty and deceit through her lack of disclosure about the relationship to the Facility while it was ongoing and for several years after it had ended. It also demonstrated an element of moral failing. The Member facilitated the Patient’s ignoring of the condition placed on him by the ORB. The Patient was ordered to live in supervised housing only. However, between September 2011 and August 2012, the Member supported the Patient to breach the ORB’s condition when she allowed him to stay at her residence on weekends, weekdays and during a 5-day road trip. The public expects nurses to be respectable and exhibit integrity in their conduct. The Member’s conduct was also disgraceful. The Patient was a vulnerable psychiatric patient who became dependant and reliant on the Member over the course of the relationship. The Member facilitated and continued this dependence even after the relationship ended by meeting with the Patient in person and communicating with him by phone. The Member knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional but carried on nonetheless. The decisions and conduct of the Member with regard to her relationship with the Patient casts serious doubt on her moral fitness and inherent ability to discharge the higher obligations the public expects nurses 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:

1. Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

Penalty Submissions

College Counsel

College Counsel submitted that the Member had signed an undertaking to permanently resign her certificate of resignation and to not reapply for registration in the future. The College’s public register will reflect the terms of the undertaking and that the Member entered into the undertaking as part of an agreed resolution of the allegations heard by the Panel. A copy will also be made available to other regulators in response to an inquiry.

The aggravating factors in this case were that the Patient was a vulnerable patient being treated for multiple psychiatric illnesses. He required treatment and supervision and the Member allowed the therapeutic nurse-patient boundary to become blurred.

The mitigating factors in this case were that the Member took responsibility for her actions. The Member brought her conduct to the attention of her supervisor and also participated with the College, signing an undertaking to permanently resign and not apply for registration in the future.

The goals of penalty are met. Protection of the public is achieved as the Member has permanently resigned and will never practice nursing again. The Member’s permanent resignation and reprimand provides specific deterrence to the Member and general deterrence to nurses in the profession indicating that this conduct will not be tolerated.

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

In CNO v. Muzylowsky (Discipline Committee, 2016) the member made inappropriate comments to her clients and colleagues and also sexually abused her clients in her care. There was a Joint Submission on Order and the penalty of an oral reprimand in this case was contingent on an undertaking by the member to permanently resign membership with the College.

In CNO v. Cook (Discipline Committee, 2020) the member sexually abused the patient and removed patient records from the hospital. A sexual relationship also began during the nurse-patient relationship and continued for 16 years. The member did not report the relationship to the College. The penalty included a reprimand, and also revocation of the member’s certificate of registration. The member admitted to some misconduct and provided a permanent undertaking to resign as a member of the College but did not admit that her conduct caused harm.

College Counsel submitted revocation is not requested in this case as the Member has taken responsibility for her actions and has cooperated with the College.

Member’s Counsel

The Member’s Counsel submitted that the Member was a nurse for almost 30 years with the College. The Member resigned in 2019 after a long and unblemished career without any reports to the College or workplace discipline. She has been a dedicated nurse. This matter came to the attention of the College because the Member reported it and chose to take responsibility. She was not the same person in 2011-2012 as she was in 2019. She has benefitted from self-reflection and a new religious faith. She has admitted her misconduct and has taken accountability for her mistakes.

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 3 months of the date that this Order becomes final.

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 Panel appreciated that the Member reported this matter to the College as a result of self-reflection. The Member has also co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility. Given the Member’s undertaking to resign, the Panel finds that the penalty satisfies the principles of specific deterrence by the reprimand. General deterrence is achieved through the publication of this decision which demonstrates to members of the profession the serious consequences for breaching professional standards. The public is also protected as the Member has agreed to never practice nursing again. Rehabilitation and remediation are not relevant in this matter due to the permanent resignation of the Member.

The penalty is in line with what has been ordered in previous cases.

I, Carly Gilchrist, 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.