College of Nurses of Ontario v. Araujo, 2021 ONCNO 152827 — College of Nurses of Ontario Discipline Committee | minicounsel

PANEL: Mary MacNeil, RN Chairperson Jay Armitage Public Member Carly Hourigan Public Member Aisha Jahangir, RN Member Jane Mathews, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO MEGAN SHORTREED for College of Nurses of Ontario

and -

KAREN ARAUJO Registration No. AA792848 KELSEY IVORY for Karen Araujo

PATRICIA HARPER Independent Legal Counsel

Heard: November 15, 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 November 15, 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 Karen Araujo.

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 the identity of the patient, referred to orally or in any documents presented in the Discipline hearing of Karen Araujo.

The Allegations

The allegations against Karen Araujo (the “Member”) as stated in the Notice of Hearing dated September 24, 2021, are as follows:

IT IS ALLEGED THAT:

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 you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as follows:

a. in or about November 2018, you failed to maintain the boundaries of the therapeutic nurse-client relationship in respect of [the Patient] while working as a Registered Practical Nurse (“RPN”) at Bellwood Health Services in Toronto, Ontario (“Bellwood”); and/or

b. on or about November 17 and/or 18, 2018, you sexually abused [the Patient] by engaging in physical sexual relations and/or touching of a sexual nature and/or behavior or remarks of a sexual nature with [the Patient] while working as a RPN at Bellwood; and/or

c. between December 2018 and October 2019, you failed to maintain the boundaries of the therapeutic nurse-client relationship in respect of [the Patient] following his discharge from Bellwood, by carrying on a personal friendship and/or romantic relationship and/or sexual relationship with [the Patient] within one year following the termination of the therapeutic relationship; and/or

d. between December 2018 and October 2019, you sexually abused [the Patient] by engaging in physical sexual relations and/or touching of a sexual nature and/or behavior or remarks of a sexual nature with [the Patient] following his discharge from Bellwood but while he was still a “patient” as defined by the Health Professions Procedural Code; and/or

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 you sexually abused [the Patient], as follows:

a. on or about November 17 and/or 18, 2018, you engaged in physical sexual relations and/or touching of a sexual nature and/or behavior or remarks of a sexual nature with [the Patient] while working as a RPN at Bellwood; and/or

b. between December 2018 and October 2019, you engaged in physical sexual relations and/or touching of a sexual nature and/or behavior or remarks of a sexual nature with [the Patient] following his discharge from Bellwood but while he was still a “patient” as defined by the Health Professions Procedural Code; and/or

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(22) of Ontario Regulation 799/93, in that, on or about April 10 and 11, 2019, while under investigation by the College of Nurses of Ontario (“CNO”), you failed to co-operate with the investigation, and in particular, you attempted to influence [the Patient’s] evidence provided to the CNO investigator; and/or
You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that 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. in or about November 2018, you failed to maintain the boundaries of the therapeutic nurse-client relationship in respect of [the Patient] while working as a RPN at Bellwood; and/or

e. on or about April 10 and 11, 2019, while under investigation by the CNO, you failed to co-operate with the investigation, and in particular, you attempted to influence [the Patient’s] evidence provided to the CNO investigator.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a), (b), (c), (d), 2(a), (b), 3, 4(a), (b), (c), (d) and (e) in the Notice of Hearing. The Panel received a written plea inquiry which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

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

THE MEMBER

Karen Araujo (the “Member”) obtained a diploma in nursing from St. Clair College of Applied Arts and Technology in 2010.
The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on May 24, 2011.
The Member was employed at Bellwood Health Services (the “Facility”) from September 7, 2017 to November 19, 2018, when she was terminated from employment as a result of the incidents described below. The Member has not been employed in a nursing role since November 23, 2018.
A panel of the Inquiries, Complaints and Reports committee (“ICRC”) suspended the Member’s certificate of registration by interim order on October 24, 2019.
The interim suspension was removed by the ICRC on February 19, 2020.

PRIOR HISTORY

The Member has no prior disciplinary findings with CNO.

THE FACILITY

The Facility is located in East York, Toronto, Ontario.
The Facility provides residential mental health and addiction services through an interdisciplinary team of health care professionals including counsellors, doctors, nurses, occupational therapists, nutritionists, family therapists, and physical health staff.
There are 90 beds available at the Facility.
Nurses at the Facility do not have fixed patient assignments. Nurses in the mental health unit can and would discuss any issues raised by a patient if approached at the nursing station.
The Member worked as a full-time staff nurse at the Facility and was responsible for providing nursing care to all patients on the mental health unit.

THE PATIENT

The patient, [ ] (the “Patient”), was admitted to the Facility’s mental health unit on the following two occasions in 2018:

a) From January 30, 2018 until he was discharged on March 13, 2018; and

b) From October 9, 2018 until he was discharged on November 20, 2018.

According to the Facility’s chart for the Patient, two weeks prior to his January 2018 admission to the Facility, the Patient attempted suicide while intoxicated.
During both of his admissions to the Facility, the Patient received treatment for alcohol use disorder, sexual compulsion, and Post-Traumatic Stress Disorder (“PTSD”) related to multiple military tours in Afghanistan.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Nurse-Patient Relationship

During both of the Patient’s admissions to the Facility in 2018, the Member provided direct care to and interacted with the Patient several times, such that they were in a nurse-client relationship.
The direct care the Member provided to the Patient included:

a) Administrating medication to the Patient, charting in his Medication Administration Record, and processing physician’s orders during both of his admissions; and

b) On October 9, 2018, at the time of the Patient’s second admission to the Facility, completion of the Patient’s multi-disciplinary Kardex History and Assessment at the time of his intake.

Personal and Sexual Relationship

On or around November 14, 2018, the Member and the Patient spoke privately in an examination room and the Member gave the Patient a handwritten note with her personal phone number.
The handwritten note the Member gave to the Patient with her name and phone number, which states:

“Mr. Intelligent, yet not so humble, [Patient’s name] J

I wanted to chat more but had a very frazzled day. Looking forward to catching up this weekend & getting to know you a bit more.

Hope you feel better too! And if not, I know a good nurse J

[Member’s mobile phone number] is me.

Chat soon”

While in the examination room, the Member hugged the Patient and kissed him on the cheek.
On the evening of Friday, November 16, 2018, the Patient disclosed details of the interaction with the Member in the examination room to his counsellor and psychotherapist.
The Patient also provided the handwritten note he received from the Member to his counsellor.
The Patient was authorized to leave the Facility during the days on the weekend of November 17 and 18, 2018, for exposure therapy.
The Member and the Patient met outside of the Facility on Saturday, November 17, 2018 and Sunday, November 18, 2018.
On Saturday, November 17, 2018, after dinner and a date, the Member and the Patient engaged in touching of a sexual nature including kissing and hugging. If the Patient were to testify, he would state that they also engaged in genital touching on this date. On Sunday, November 18, 2018, the Patient called the Member and made plans to meet her at her apartment where they engaged in sexual contact. If the Member were to testify, she would state that they kissed. If the Patient were to testify, he would state that they performed oral sex on one another and he penetrated her anally.
On Monday November 19, 2018, the Facility held a meeting with the Patient and several staff members, including the Executive Director. The meeting was prompted by the disclosures the Patient made to his counsellor and psychotherapist on the preceding Friday. During the meeting, the Patient disclosed to staff that he and the Member had met outside the Facility over the weekend and had sex. The Patient stated that he had “literally and figuratively fucked [the Member].” Facility management also received text messages the Member had sent to a co-worker over the weekend which disclosed the Member’s romantic and sexual contact with a person who the co-worker believed was the Patient.
The Patient’s Discharge Summary completed at the time of his discharge on November 20, 2018 states:

“At the end of the program, [the Patient] disclosed that a nurse had inappropriate interactions with him including expressing her feelings for him and going out with him over the weekend off site when he was on an exposure. Members of his trauma team, his prior sexual addiction counsellor, and the Executive Director met with [the Patient] to provide him support. Support provided included ensuring he understood the responsibility was on the nurse, addressing his feelings, and offering additional supports such as further treatment for his sex addiction.”

The Facility terminated the Member’s employment on November 19, 2018, and reported the termination to the CNO.
The Member and the Patient then had an ongoing personal and sexual relationship between December 2018 and October 2019. The relationship included extensive communication by telephone and text and engaging in sexual intercourse every couple of months, whenever the Patient had occasion to visit Toronto.
The records obtained for both the Member’s personal mobile phone number and the Patient’s personal mobile phone number confirm their frequent contact over the year following the Patient’s discharge from the Facility.

Failure to Co-operate with CNO Investigation

In and around February to April 2019, while the Member and the Patient were still involved in a personal and sexual relationship, the Member was aware that the CNO was investigating the report received from the Facility (“Report A”). The Member and the Patient discussed the investigation and decided to conceal the extent of their personal relationship from the CNO investigator.
On April 10, 2019, the Patient was interviewed by a CNO investigator over the telephone. Unknown to the investigator, the Patient was with the Member in a hotel room in Owen Sound, Ontario during this interview. The Member had booked and paid for the hotel room. The Member was listening and “coaching” the Patient throughout the Patient’s interview.
During the April 10, 2019 interview, the Patient stated that he may have “embellished” what really occurred when he spoke with staff at the Facility in and around November 19, 2018.
The Patient did not disclose the extent of his relationship with the Member and specifically, that they had engaged in sexual intercourse while he was an in-patient and on multiple occasions after his discharge. Further, the Patient indicated that the Member had cautioned him on at least two occasions about flirting with her as she was a nurse.
After the interview concluded, the Patient and the Member engaged in sexual relations, including intercourse.
On September 23, 2019, CNO notified the Member that a panel of the Inquiries, Complaints and Reports Committee (“ICRC”) intended to make an interim order regarding her certificate of registration.
The Member was advised that she could provide a response by October 14, 2019. CNO followed up with the Member via e-mail and voicemail on October 21, 2019 but did not receive a response.
A panel of the ICRC suspended the Member’s certificate of registration by interim order on October 24, 2019.
On October 24, 2019, the Patient informed CNO that he did not consent to the use of his medical records and did not want to participate in the investigation any further.
On February 19, 2020, the ICRC removed the interim order suspending the Member’s certificate of registration. In light of the information available to it at the time, including the summary of the interview conducted by the CNO investigator with the Patient on or about April 10, 2019 in which he minimized the nature of his relationship with the Member, the ICRC directed the Member to be cautioned and complete a SCERP.
On March 31, 2020, CNO received a report from a registered psychotherapist who was providing treatment to the Patient’s [spouse] (“Report B”). Report B indicated that the Patient’s [spouse] disclosed that the Member engaged in flirting, personal outings, and a “repeated sexual relationship” with the Patient.
On April 11, 2020, CNO received a complaint from the Patient alleging that the Member engaged in flirting, went on a date, and became involved in a sexual relationship with him while he was at the Facility for a six-week addiction program and for several months thereafter (the “Complaint”).
The Patient reported that when the CNO investigator contacted him previously to obtain a statement in April 2019, he gave false information to CNO while the Member coached him on the phone call.
Given the increased scope of the allegations in the Complaint and Report B, and the fresh evidence from the Patient indicating that the Member had coached him to lie during the previous investigation of Report A, the ICRC was required to conduct an investigation under the Code.
On May 27, 2020, a panel of the ICRC suspended the implementation of the previously ordered SCERP and Caution relating to Report A pending the final conclusion of Report B and the Complaint.
As part of CNO’s investigation into the Complaint and Report B, the Member provided a response dated July 9, 2020. She stated that she was in Brazil at the time of the Patient’s interview on April 10, 2019 and provided an Air Canada booking confirmation, but not any proof the flight was taken. This statement was false.
The investigation of the Complaint and Report B was concluded and, on March 17, 2021, a panel of the ICRC referred specified allegations of professional misconduct to the Discipline Committee pursuant to s. 26 of the Code.
On June 21, 2021, a panel of the ICRC set aside the previously ordered SCERP and Caution and directed that the order be removed from the CNO public register, based on the referral of allegations to the Discipline Committee arising from the Complaint and Report B.

CNO STANDARDS

CNO’s Professional Standards provides that each nurse is accountable to the public and responsible for ensuring her or his 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 patients.
CNO’s Professional Standards further state that ethical nursing includes acting with integrity, honesty and professionalism in all dealings with the patient and other health care team members.
CNO’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) defines a boundary in the nurse-patient relationship as “the point at which the relationship changes from professional and therapeutic to unprofessional and personal.” The TNCR Standard places the responsibility for establishing and maintaining the limits and boundaries in the therapeutic nurse-patient relationship on the nurse. The TNCR Standard provides that:

Crossing 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 [patient], or behaving in an unprofessional manner with the [patient].

With respect to maintaining boundaries, a nurse demonstrates having met the TNCR Standard by actions such as:

setting and maintaining the appropriate boundaries within the relationship, and helping [patients] understand when their requests are beyond the limits of the therapeutic relationship;
developing and following a comprehensive care plan with the [patient] and health care team that aims to meet the [patient’s] needs;
ensuring 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;
abstaining from disclosing personal information, unless it meets an articulated therapeutic need of the patient;
continually clarifying her/his role in the therapeutic relationship, especially in situations in which the [patient] may become unclear about the boundaries and limits of the relationship; and
ensuring that the nurse-[patient] relationship and nursing strategies are developed for the purpose of promoting the health and well-being of the patient and not to meet the needs of the nurse, especially when considering self-disclosure.

CNO’s TNCR Standard requires nurses to protect the patient from harm by ensuring that abuse is prevented or stopped and reported. With respect to protecting the patient from abuse, a nurse demonstrates having met the TNCR Standard by actions such as:

a. not entering a friendship, or a romantic, sexual or other personal relationship with a [patient] when a therapeutic relationship exists; and

b. not engaging in behaviours with a [patient] or making remarks that may reasonably be perceived by other nurses and/or others to be romantic, sexually suggestive, exploitive and/or sexually abusive (for example, spending extra time together outside of the [patient]’s care plan).

The TNCR Standard states that sexual abuse includes but is not limited to: consensual and non-consensual touching of a sexual nature or touching that may be perceived by the client or others to be sexual; sexual intercourse or other forms of sexual contact with a client; and non-physical sexual activity such as viewing pornographic websites with a client.
As set out in section 1(6) of the Code, for the purposes of sexual abuse, an individual is considered to be a “patient” for one year from the date on which the individual ceased to be the member’s patient. This is reflected in the TNCR Standard which expressly notes that an individual is considered to be a client while receiving care and for a period of one year following the end of the professional relationship.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1 (a) to (d) of the Notice of Hearing, in that she contravened a standard of practice of the profession or failed to meet the standards of practice of the profession as described in paragraphs 7 to 54 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 2 (a) and (b) of the Notice of Hearing, in that she sexually abused the Patient, as described in paragraphs 16 to 29, 34 and 48 to 54 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 3 of the Notice of Hearing, in that, on or about April 10 and 11, 2019, while under investigation by CNO, she failed to co-operate with the investigation, and in particular, she attempted to influence the Patient’s evidence provided to the CNO investigator, as described in paragraphs 30 to 47 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 4 (a) to (e) of the Notice of Hearing, in that she 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 described in paragraphs 7 to 54 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), (b), (c), (d), 2(a), (b), 3, 4(a), (b), (c), (d) and (e) of the Notice of Hearing. As to allegations #4(a), (b), (c), (d) and (e), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonorable, disgraceful and unprofessional.

Reasons for Decision

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

Allegations #1(a), (b), (c) and (d) in the Notice of Hearing are supported by paragraphs 7 to 55 in the Agreed Statement of Facts in that the Member failed to maintain the boundaries of the therapeutic nurse-client relationship. The Member provided the Patient with a handwritten note which she stated, “Looking forward to catching up this weekend & getting to know you a bit more”. The Member also included her phone number in the note. The Member had an ongoing personal and sexual relationship with the Patient, including when the Patient was an inpatient and within one year after the termination of the therapeutic relationship. The ongoing personal and sexual relationship was documented in text messages and phone call records. In paragraph 55 of the Agreed Statement of Facts the Member admitted that she committed the acts of professional misconduct. She admitted that she failed to meet the standards of practice of the profession. The College’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) defines a boundary in the nurse-patient relationship as “the point at which the relationship changes from professional and therapeutic to unprofessional and personal.” The TNCR Standard places the responsibility for establishing and maintaining the limits and boundaries in the therapeutic nurse-patient relationship on the nurse, the Member did not maintain the boundaries required by this Standard.

Allegations #2(a) and (b) in the Notice of Hearing are supported by paragraphs 13 to 29, 33, 34, 48 to 54 and 56 in the Agreed Statement of Facts. On November 17 and 18, 2018 the Member met with the Patient outside the facility when the Patient was on exposure therapy. They had dinner and a date, then met at the Member’s home and engaged in sexual contact. The Patient was a vulnerable mental health patient. While admitted to hospital the Patient was receiving care for alcohol use disorder, sexual compulsion, and Post Traumatic Stress Disorder. The Member and the Patient engaged in an ongoing personal and sexual relationship between December 2018 and October 2019 as stated in the Agreed Statement of Facts paragraph 28. In paragraph 56 of the Agreed Statement of Facts the Member admitted that she sexually abused the Patient. The College’s TNCR Standard requires nurses to protect the patient from harm by ensuring that abuse is prevented or stopped and reported. With respect to protecting the patient from abuse, a nurse demonstrates this standard by not entering a friendship, or a romantic, sexual or other personal relationship with a [patient] when a therapeutic relationship exists. The TNCR Standard states that sexual abuse includes but is not limited to: consensual and non-consensual touching of a sexual nature or touching that may be perceived by the client or others to be sexual; sexual intercourse or other forms of sexual contact with a client. By engaging in a sexual relationship with the Patient, the Member’s actions constitute sexual abuse.

Allegation #3 in the Notice of Hearing is supported by paragraphs 30 to 49 and 57 in the Agreed Statement of Facts. During the course of the College’s investigation into the Member, the Member paid for a hotel room and was present in the room when the Patient was interviewed by the College. The Member was listening and “coaching” the Patient throughout the interview. In paragraph 57 of the Agreed Statement of Facts the Member admitted that she committed acts of professional misconduct as she failed to co-operate with the investigation by the College in that she admitted to attempting to influence the Patient’s evidence provided to the College’s investigator.

Allegations #4(a), (b), (c), (d) and (e) in the Notice of Hearing are supported by paragraphs 7 to 54 in the Agreed Statement of Facts. The Member failed to maintain the boundaries of the therapeutic nurse-client relationship. The Member had an ongoing personal and sexual relationship with the Patient, including when the Patient was an inpatient and within one year after the termination of the therapeutic relationship. The Patient was a vulnerable mental health patient. While admitted to hospital the Patient was receiving care for alcohol use disorder, sexual compulsion, and Post Traumatic Stress Disorder. Telephone records provided information that the Member and the Patient had frequent contact over the year following the Patient’s discharge from the Facility. The Member admitted that she committed the acts of professional misconduct, she admits that she failed to meet the standards of practice of the profession. She also admitted that her actions constituted sexual abuse. Furthermore, the Member attempted to thwart the College’s investigation by being present and “coaching” the Patient though his phone interview. In paragraph 58 of the Agreed Statement of Facts the Member admitted that her behaviour would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional. The Member knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional. Her conduct included dishonesty and deceit and brought shame to herself and to the profession. Overall, the Panel found that the Member’s conduct would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional.

Penalty

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

Requiring the Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.
Requiring the Member to reimburse the College for funding provided for [the Patient] under the program required by s. 85.7 of the Health Professions Procedural Code, up to the amount of $5,000, if [the Patient] accesses the fund.
Directing the Executive Director to immediately revoke the Member’s certificate of registration.

Penalty Submissions

Submissions were made by College Counsel.

The aggravating factors in this case were the seriousness of the allegations and the Member’s conduct during the initial investigation by the College. The Member not only had a sexual relationship with the Patient that persisted for almost a year, but then also influenced the Patient to lie to the College during the investigation.

The mitigating factors in this case were that the Member admitted the allegations and took responsibility for her actions by entering into an Agreed Statement of Facts and a Joint Submission on Order. The Member’s admission saved time and resources and spared the Patient and witnesses from testifying. The Member has no prior discipline history relating to her practice, and she has not practiced nursing in the time since her termination from the facility.

Revocation and a reprimand are required by legislation in the circumstances of this case.

The proposed penalty provides for general deterrence through the revocation of the Member’s certificate of registration, which sends a clear message to the profession that this type of conduct will not be tolerated.

The proposed penalty provides for specific deterrence through the oral reprimand and the revocation of the Member’s certificate of registration.

Overall, the public is protected as the Member’s certificate of registration has been revoked, she will no longer practice nursing.

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. Chan (Discipline Committee, 2018): In this case, the member was found to have engaged in a sexual relationship involving sexual intercourse before the client had been discharged. The penalty included an oral reprimand and revocation of the member’s certificate of registration.

CNO v. Kuiken-Rogers (Discipline Committee, 2014): In this case, the member was found to have engaged in a sexual relationship involving sexual intercourse before the client had been discharged. The penalty included an oral reprimand and revocation of the member’s certificate of registration. The member in this case was also required to reimburse the College for funding up to the amount of $5,000 provided for the client under the program required by s. 85.7 of the Health Professions Procedural Code, if the client accesses the fund.

The Member’s Counsel agreed with the College Counsel regarding mitigating factors of the case. The Member admitted the allegations and took responsibility for her actions by entering into an Agreed Statement of Facts and a Joint Submission on Order. The Member’s admission saved time and resources and spared the Patient and witnesses from testifying. The Member has no prior discipline history relating to her practice, and she has not practiced nursing in the time since her termination from the facility.

Member’s Counsel submitted the following cases to the Panel to demonstrate the proposed penalty fell within the range of similar cases.

Bradley v Ontario College of Teachers, 2021 ONSC 2303: In this case, the panel raised concerns regarding the Member of the Ontario Teacher’s College being able to serve his suspension during the summer months. The Panel was seeking to reject the Joint Submission on Order. The Supreme Court adopted a “public interest” test which states that the Joint Submission on Sentence is to be accepted unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

R v Anthony Cook, 2016 SCC 43: In this case the Supreme Court emphasized that a joint submission should not be rejected lightly. Rejection denotes a submission is so unhinged from the circumstances of the offence and the offender that its acceptance would create the impression that the justice system had broken down.

The Panel considered evidence from both the CNO and the Member’s Counsel when reaching the penalty decision.

Penalty Decision

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

The Member is required to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.
The Member is required to reimburse the College for funding provided for [the Patient] under the program required by s. 85.7 of the Health Professions Procedural Code, up to the amount of $5,000, if [the Patient] accesses the fund.
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 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 and public protection. Given its findings of professional misconduct, the Panel had a statutory obligation to reprimand the Member and revoke her certificate of registration.

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

I, Mary MacNeil, 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.