College of Nurses of Ontario v. Dulmage, 2021 ONCNO 119935

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Tanya Dion, RN Chairperson Sylvia Douglas Public Member Carly Gilchrist, RPN Member Max Hamlyn, RPN Member Lalitha Poonasamy Public Member

BETWEEN:

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

• and -

CATHRYN MARIE DULMAGE Registration No. IA03920 JEREMY RICHLER for Cathryn Marie Dulmage

CHRISTOPHER WIRTH Independent Legal Counsel

Heard: May 5, 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 5, 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 the identity of the patient, referred to orally or in any documents presented in the Discipline hearing of Cathryn Marie Dulmage (the “Member”).

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 name of the patient, or any information that could disclose the identity of the patient, referred to orally or in any documents presented in the Discipline hearing of the Member.

The Allegations

The allegations against 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)(b.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that while registered as a Registered Practical Nurse and employed as a Personal Support Worker at the Nightingale Nursing Registry, in Peterborough, Ontario (the “Agency”), you sexually abused a patient, in that, in or about January 2017:

(a) you engaged in touching of a sexual nature of a client of the Agency, [the Patient];

(b) you engaged in behaviour and/or made remarks of a sexual nature toward [the Patient]; and/or

(c) you engaged in physical sexual relations with [the Patient]; 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(1) of Ontario Regulation 799/93, in that while registered as a Registered Practical Nurse and employed as a Personal Support Worker at the Agency, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that in or about January 2017:

(a) you engaged in touching of a sexual nature of a client of the Agency, [the Patient];

(b) you engaged in behaviour and/or made remarks of a sexual nature toward [the Patient];

(c) you engaged in physical sexual relations with [the Patient]; and/or

(d) you failed to maintain the boundaries of the professional relationship with [the Patient] when you engaged in a personal, romantic and/or sexual relationship with [the Patient]; and/or

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, while registered as a Registered Practical Nurse and employed as a Personal Support Worker at the Agency, you engaged in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional in that in or about January 2017:

(a) you engaged in touching of a sexual nature of a client of the Agency, [the Patient];

(b) you engaged in behaviour and/or made remarks of a sexual nature toward [the Patient];

(c) you engaged in physical sexual relations with [the Patient]; and/or

(d) you failed to maintain the boundaries of the professional relationship with [the Patient] when you engaged in a personal, romantic and/or sexual relationship with [the Patient].

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a), 1(b), 1(c), 2(a), 2(b), 2(c), 2(d), 3(a), 3(b), 3(c) and 3(d) 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 as amended reads, unedited, as follows:

THE MEMBER

1. Cathryn Marie Dulmage (the “Member”) obtained a diploma in nursing from Kenner Collegiate Vocational Institute in Peterborough, Ontario, in 1991.

2. The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on March 15, 1991.

3. The Member entered the Non-Practising class from January 10, 2014 through February 22, 2017. She was administratively suspended for non-payment of fees from February 22, 2017 to March 24, 2017. The Member’s certificate of registration expired on March 24, 2017. As such, the Member is currently not entitled to practice nursing in Ontario.

4. The Member was employed as a full-time Personal Support Worker (“PSW”) by Nightingale Nursing Registry Ltd. (the “Agency”) from May 4, 2015 to January 23, 2017, when her employment was terminated as a result of the incidents below.

THE AGENCY

5. The Agency is located in Peterborough, Ontario.

6. The Agency provides in-home personal support care, including but not limited to bathing, laundry, dressing, personal hygiene, meal preparation and light housekeeping.

THE PATIENT

7. In January 2017, the Patient was an 80-year-old man with dementia. The Patient died in [ ].

8. Since the Patient remained capable of living at home, his family installed an indoor and outdoor security system, with video and audio recording, for his protection.

9. The Agency began providing PSW services to the Patient in 2016.

10. The Member was first assigned to provide personal support and home care services to the Patient in January 2017. At this time, the Member was registered with CNO in the Non-Practising Class.

11. The Member attended the Patient’s home a total of six one-hour shifts over a seven-day period between January 16, 2017 and January 23, 2017, with two attendance on Monday January 16, one attendance on Tuesday January 17, two attendance on Thursday January 19, and one attendance on Monday January 23, 2017.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Personal, Romantic and/or Sexual Relationship with the Patient

12. On her first shift with the Patient, the Member charted that he was “very pleasant”. On the same day, the Patient contacted the Agency and asked that the Member be assigned to come a few times a week. The Member was responsible for providing home care to the Patient during assigned shifts.

13. On January 20, 2017, the Member was not scheduled to visit the Patient. The Member attended at the residence of the Patient on this day. Video footage showed the Member coming to the Patient’s residence carrying coffee, and going upstairs with him for approximately 30 minutes.

14. The interaction between the Member and the Patient in the upstairs of the home was not recorded due to the lack of video cameras on the upper floor. The Member admits and acknowledges that during this 30 minute window, the Member and the Patient engaged in physical sexual interaction (including oral sex and intercourse), sexual behaviour, touching of a sexual nature (including hugging and kissing), and exchanged remarks of a sexual nature.

15. On January 22, 2017, the Member was not scheduled to visit the Patient. However, the Member attended at the residence of the Patient on this day. The January 22, 2017 video footage shows the Member embracing and kissing the Patient. The video also captures the Patient telling the Member that he loves her twice as she exits the home.

16. The Patient’s family reviewed the video footage and provided it to the Agency. When questioned by the Agency’s Director of Operations on January 23, 2017, the Member admitted that she had been intimate with the Patient, including “sex and fellatio”. The Member stated that she and the Patient had engaged in “touching and kissing” and that they were “in love”.

17. The Agency terminated her employment on January 23, 2017.

18. The Member and the Patient did not have any further interactions after her dismissal. If the Member were to testify, she would testify that she deeply regrets her conduct and that she has received counselling from her pastor and a psychologist.

STANDARDS OF PRACTICE

19. 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

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

21. 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.

22. 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

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

24. 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.”

25. While 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 explains that setting appropriate boundaries with patients is an important aspect of a care provider’s role.

26. 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.

27. Members are expected to recognize the need for increased vigilance in maintaining appropriate boundaries in certain practice settings, such as when providing home care for vulnerable patients. Clear communication, such as continually clarifying one’s role in the relationship, helps clarify boundaries for patients who may become uncertain about the limits of their relationship with the member.

28. 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. Rather, patients deserve access to health care free from the risk of exploitation and mental, emotional and/or physical harm. There is no place for patient abuse in any practice setting, under any circumstance.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

29. The Member acknowledges and admits that her relationship with the Patient breached the boundaries of the therapeutic nurse-patient relationship and that her conduct constitutes sexual abuse as defined in subsection 1(3) of the Health Professions Procedural Code (the “Code”) of the Regulated Health Professions Act, 1991. She further acknowledges that she was required to maintain the standards of the practice of the profession and governed by all of the provisions of the Code while she was registered in the Non-Practising Class.

30. The Member also admits that her touching of a sexual nature, engaging in behaviour and/or remarks of a sexual nature, and engaging in physical sexual relations with the Patient breached the standards of practice as set out in CNO’s Professional Standards and that her personal, romantic and sexual relationship with the Patient further breached the standards of practice of the profession, including the CNO’s Therapeutic Nurse-Client Relationship Standard.

31. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1(a), (b) and (c) of the Notice of Hearing, as described in paragraphs 12-18 above, in that she sexually abused the Patient by engaging in touching of a sexual nature, behaviour or remarks of a sexual nature, and physical sexual relations with the Patient.

32. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2(a), (b), (c) and (d) of the Notice of Hearing, as described in paragraphs 12-18 above, in that she failed to maintain the standards of practice of the profession, specifically the boundaries of the therapeutic nurse-patient relationship.

33. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 3(a), (b), (c) and (d) of the Notice of Hearing, as described in paragraphs 12-18 above, brings shame to herself and to the profession and is disgraceful, dishonourable and unprofessional.

Submissions

College Counsel submitted that even though the Member was in the Non-Practising class and working as a PSW at the time she engaged in this conduct, the patient was a patient for the purposes of subsection 1(3) of the Code, which defines what is sexual abuse of a patient by a member and that Ontario Regulation 260/18 which came into effect in May 2018 codified what had been the practice up to then as to who a patient was. A number of the criteria for a patient were present here such that the Member had engaged in conduct with a patient.

As well, this Committee in a previous decision, CNO v. Bowles (Discipline Committee, 2019), had found that a member must still maintain the College’s standards of practice even when working as a PSW.

The Member’s Counsel submitted that the Member deeply regrets the incident, takes responsibility and has admitted the allegations.

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), 1(b), 1(c), 2(a), 2(b), 2(c), 2(d), 3(a), 3(b), 3(c) and 3(d) of the Notice of Hearing. As to allegations #3(a), 3(b), 3(c) and 3(d), 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 found that although the Member was not employed as an RPN and was instead working as a PSW at the time of the incident, the Member was still required to adhere to her professional obligations and subject to all the standards that members of the profession are held to.

Ontario Regulation 260/18 which came into effect in May 2018, codified what the practice had been as to who is a patient and identified the following criteria for determining whether an individual is a “patient” under subsection 1(6) of the Code which in turn defines what a patient is in subsection 1(3) of the Code:

1. An individual is a patient of a member if there is direct interaction between the member and the individual and any of the following conditions are satisfied:

i. The member has, in respect of a health care service provided by the member to the individual, charged or received payment from the individual or a third party on behalf of the individual;

ii. The member has contributed to a health record or file for the individual;

iii. The individual has consented to the health care service recommended by the member;

iv. The member prescribed a drug for which a prescription is needed to an individual.

In this case, the patient was clearly a “patient” for the purposes of subsection 1(6) of the Code as the Member provided a paid health service, contributed to the health record for the patient and the patient consented to the health care service. As a result, the Panel was satisfied the patient was a “patient” for the purposes of subsection 1(3) of the Code.

Further, the Panel accepted and relied upon an earlier decision of this Committee in CNO v. Bowles (Discipline Committee, 2019) which had found that a member must still maintain the College’s standards even when working as a PSW.

The Panel then 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.

Allegations #1(a), 1(b) and 1(c) in the Notice of Hearing are supported by paragraphs 12-18, 29 and 31 in the Agreed Statement of Facts. The Member was responsible for providing home care to the patient during assigned shifts. The Member attended the residence on unscheduled days. Video footage captured the Member’s attendance, as well as specific interactions between the Member and the Patient. The Member was seen going upstairs with the patient. The Member admits and acknowledges physical and sexual interaction occurred. These included oral sex and intercourse, sexual behaviour, touching of a sexual nature including hugging and kissing and exchanging remarks of a sexual nature. In another instance video footage shows the Member embracing and kissing the patient. Accordingly, the Panel finds that the Member sexually abused the Patient.

Allegations #2(a), 2(b), 2(c) and 2(d) in the Notice of Hearing are supported by paragraphs 12-30 and 32 in the Agreed Statement of Facts. The Member was responsible for providing home care to the patient during assigned shifts. The Member would attend the residence on unscheduled days. Video footage captured these moments. The Member was seen going upstairs with the patient. The Member admits and acknowledges physical and sexual interaction occurred. This included oral sex and intercourse, sexual behaviour, touching of a sexual nature including hugging and kissing and exchanging remarks of a sexual nature. On another instance video footage shows the Member embracing and kissing the patient also video captured the patient telling the Member that he loves her twice as she exits the home. The Member admitted during an interview with her agency that the Member and the patient were “in love”.

CNO Professional Standards provide that each nurse is responsible for ensuring their conduct meets the standards of the profession. Nurses are 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. The standards of practice indicates that a nurse demonstrates these expectations by among other things, actions that include maintaining boundaries between professional therapeutic relationships and non-professional relationships. CNO’s TNCR Standard provides guidance on establishing and maintaining appropriate nurse-patient boundaries. The Member admitted and the Panel finds that she breached the College’s Professional Standards and TNCR Standard.

With respect to Allegations #3(a), 3(b), 3(c) and 3(d), the Panel finds that the Member’s conduct in failing to maintain boundaries of the professional relationship 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 knew or ought to have known that her conduct through repeatedly having a romantic relationship with the patient and making remarks of a sexual nature, was unacceptable and fell below the standards of a professional. Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The conduct in failing to maintain and breach the professional relationship when the Member engaged in a personal, romantic and sexual relationship casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

Penalty

College Counsel and the Member’s Counsel advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission on Order requests that this Panel make an order as follows:

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 immediately revoke the Member’s certificate of registration.

Penalty Submissions

Submissions were made by College Counsel.

College Counsel reviewed with the Panel excerpts from section 51 of the Health Professions Procedural Code (the “Code”). Section 51(1) of the Code provides that the Panel is required to find the Member committed an act of professional misconduct if the Panel finds the Member has sexually abused a patient. Under section 51(2), the Panel has the discretion to impose a range of consequences as part of a penalty for a finding of misconduct, including suspension, revocation, reprimands and impose terms, conditions and limitations, and fines. Under subsection 51(5)3 of the Code, however, if the Panel finds that the Member committed the act of sexual abuse, and if the nature of the sexual abuse involved particular acts as defined in the subsection, then the Panel must reprimand the Member and revoke the Member’s certificate of registration if the sexual abuse involves any of the following acts including sexual intercourse, genital to genital, genital to anal, oral to genital, oral to anal, contact or touching of a sexual nature of the patient’s genital, anus, breasts or buttocks. College Counsel submitted that as a result of section 51(5)3, the Panel is obliged by the legislation to reprimand the Member and to revoke her certificate of registration because the sexual abuse involved sexual intercourse and oral sex.

College Counsel submitted that even absent the mandatory requirement under the statute to revoke and reprimand the Member, the order jointly submitted is appropriate and reflects the circumstances and findings of professional misconduct.

College Counsel submitted that the proposed penalty in the Joint Submission on Order will send a strong message to the public and the membership that abuse of patients, and in particular sexual abuse, will not be tolerated. As a matter of general deterrence, as well as to maintain the public’s confidence in the College’s ability to regulate the profession and protect the public, revocation is the only appropriate remedy in this circumstance. The Joint Submission on Order is appropriate because it gives effect to specific statutory provisions which require a mandatory revocation in these circumstances.

The aggravating factors in this case were:

• The seriousness of the Member’s conduct;

• The patient was an elderly gentleman with dementia;

• The patient was vulnerable.

The mitigating factors in this case were:

• The Member has cooperated throughout the entire process;

• The Member acknowledged her misconduct by agreeing to the Agreed Statement of Facts and the Joint Submission on Order.

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

CNO v. Bowles (Discipline Committee, 2019). This case involved the member’s role as a personal support worker. The member disclosed personal health information to three clients, misappropriated funds from one client, misappropriated medication, falsified the narcotic count record and the medication administration record. During this hearing the member was not present nor represented. The member had surrendered her certificate of registration. The penalty in this case was an oral reprimand and a revocation of the member’s certificate of registration.

CNO v. Haringa (Discipline Committee, 2020). In this case the member engaged in sexual intercourse and other forms of physical sexual relations, the member engaged in sexual touching as well as engaged in behaviour or remarks of a sexual nature towards a patient. The case involved sexual abuse of two patients. During this hearing the member was present and represented. The penalty in this case was an oral reprimand and revocation of the member’s certificate of registration.

Member’s Counsel agreed with College Counsel’s submissions and had nothing further to add.

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 immediately revoke the Member’s certificate of registration.

Reasons for Penalty Decision

The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that 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 reprimand and revocation of the Member’s certificate of registration are required by the Code. Further, 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. Specific deterrence is met through the oral reprimand and revocation of the Member’s certificate of registration. The penalty also serves as a general deterrence via the reprimand and the revocation of the Member’s certificate of registration indicating to all members that boundary and sexual abuse violations will have serious consequences. Revocation ensures the Member will not practice nursing, thereby protecting the public. Rehabilitation and remediation are not relevant as the Member will not be practicing nursing.

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

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