College of Nurses of Ontario v. Knell, 2021 ONCNO 63722

DISCIPLINE COMMITTEE

OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Terry Holland, RPN Chairperson

Sylvia Douglas Public Member

Mary MacNeil, RN Member

Ian McKinnon Public Member

George Rudanycz, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for

) College of Nurses of Ontario

• and - )

ROBERT DAVID KNELL ) NO REPRESENTATION for

Registration No.: 0181032 ) Robert David Knell

) CHRISTOPHER WIRTH and

) PATRICIA HARPER

) Independent Legal Counsel

) Heard: February 19 & 23, 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”) commencing on February 19, 2021, via videoconference. Submissions on Penalty were delayed until February 23, 2021 as Robert David Knell (the “Member”) was unable to attend the full hearing on February 19, 2021.

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 the Member.

The Panel considered the submissions of the parties 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 the Member.

The Allegations

College Counsel advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs 1(c) and 2(c) in the Notice of Hearing dated January 14, 2021. The Panel granted this request. The remaining allegations against the Member 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 registered as a Registered Nurse and while employed as a clinical supervisor of personal support worker students assigned to placements at Trent Valley Lodge in Trenton, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession on or about April 25, 2017, and in particular:

(a) you examined [ ], a patient of the Facility, without consent;

(b) you examined [the Patient] and/or reviewed her chart, which was not required or permitted in your role as a clinical supervisor;

(c) [withdrawn]; and/or

(d) you breached the boundaries of the therapeutic nurse-patient relationship in your interactions 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(37) of Ontario Regulation 799/93, in that, while registered as a Registered Nurse and while employed as a clinical supervisor of personal support worker students assigned to placements at the Facility, 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 April 25, 2017:

(a) you examined [ ], a patient of the Facility, without consent;

(b) you examined [the Patient] and/or reviewed her chart, which was not required or permitted in your role as a clinical supervisor;

(c) [withdrawn]; and/or

(d) you breached the boundaries of the therapeutic nurse-patient relationship in your interactions with [the Patient].

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a), 1(b), 1(d), 2(a), 2(b) and 2(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 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. Robert David Knell (the “Member”) graduated with a diploma in nursing from England in 1983.

2. The Member first registered with the College of Nurses of Ontario (the “CNO”) as a Registered Practical Nurse (“RPN”) on January 1, 1985. He resigned this certificate of registration on February 1, 2013 and is not currently entitled to practice nursing in Ontario as an RPN.

3. The Member registered as a Registered Nurse (“RN”) with CNO on April 3, 2001. His certificate of registration expired on April 19, 2018. He is not currently entitled to practice nursing in Ontario as an RN, or in any other class.

4. In April 2017, the Member worked, as a volunteer and on a part-time basis, as a Placement Instructor and Clinical Supervisor for the Personal Support Worker Program (“PSW Program”) of the Loyola School of Adult and Continuing Education – Kingston Campus. The PSW Program is available through the Algonquin and Lakeshore Catholic District School Board (the “Employer”).

5. The PSW Program includes the placement of students in community nursing homes. The Member was responsible for overseeing a PSW Program student who was assigned to a community placement at Trent Valley Lodge in Trenton, Ontario (the “Facility”).

6. The Member attended at the Facility in his role as a Placement Instructor and Clinical Supervisor to supervise a PSW Program student.

7. The Member started his volunteer role with the Employer on April 20, 2017 and was terminated on May 1, 2017 in relation to the incident below.

The Patient

8. The Patient was an elderly woman who resided in the Facility. She had advanced dementia. She was not competent to provide informed consent.

9. The Member was not assigned care of the Patient, nor was the Member delegated responsibility for providing care, assessment or medical support to the Patient while he was at the Facility.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

10. On April 25, 2017, the Member was in attendance at the Facility to supervise his PSW Program student.

11. At approximately 20:15 on that day, the Member, one Facility staff member, one personal support worker employed by the Facility (the “Facility PSW”), one PSW Program student, and the Patient were standing by the nursing station.

12. The Patient had fallen about one week prior and, as a result, had bruises on her face and a welt above one of her eyes.

13. The Member asked the Facility staff member whether anyone had ordered x-rays of the Patient’s neck, head and face. The staff member told him that x-rays had not been performed.

14. The Member examined the Patient by placing his hands on the Patient’s cheeks, head and neck. He did not seek or obtain consent from the Patient or her substitute decision-maker, nor did he seek approval from any staff member assigned to her care before he examined the Patient.

15. The Facility PSW and the PSW Program student had unobstructed views of the Member and the Patient during the examination.

16. If the Member were to testify, he would state that he conducted an examination out of concern for the Patient’s well being and that, given the visual injuries and the vulnerable nature of the Patient, he was acting on his instinct as a nurse to provide care.

17. The Member acknowledges that he was not in the Patient’s circle of care and should not have provided any care including any examination, which was not required or permitted in his role as Placement Instructor and a Clinical Supervisor. He also acknowledges that he did not have consent or authorization to examine the Patient.

18. During the examination, the Member brought his face on level with the Patient’s and a kiss occurred between the Member and the Patient.

19. If the Facility PSW and the PSW Program student were to testify, they would state that they observed the Member kiss the Patient on the lips and that it was the Member who initiated the kiss.

20. The Member denies that he initiated a kiss of the Patient. If the Member were to testify, he would state that he did not initiate the kiss of the Patient, that he positioned himself at eye-level with the Patient in order to make her feel more comfortable with the examination and so she clearly could hear him speak to her, and that the Patient kissed him near his mouth without warning.

21. The Member acknowledges, that regardless of the details of the kiss, a kiss occurred. The Member admits and acknowledges that he placed himself in a position of proximity to the Patient that was unnecessary and failed to create physical, social/emotional and professional boundaries with the Patient that would have avoided the kiss. The Member acknowledges that he created a situation that allowed for a kiss to occur between himself and the Patient, which he could have and should have avoided.

22. The Member further acknowledges that his conduct during the interaction with the Patient during which the kiss occurred was a breach of the professional boundaries.

23. Following the examination and the kiss, the Member said words to the effect of, “I have paperwork to do”.

24. Later during that same shift, the Member reviewed the Patient’s medical chart regarding her fall. He did not have authorization from either the Facility or the Patient to do so. Examining the Patient’s chart to better understand the care provided to her after her fall was not required or necessary in his role as a Placement Instructor and Clinical Supervisor.

25. If the Member were to testify, he would state that he regrets his conduct.

STANDARDS OF PRACTICE

26. CNO publishes 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

27. 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 actions such as:

a. identifying her/himself and explaining her/his role to [patients];

b. recognizing limits of practice and consulting appropriately;

c. advocating on behalf of [patients];

d. seeking assistance appropriately and in a timely manner;

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

f. evaluating/describing the outcomes of specific interventions and modifying the plan/approach.

Confidentiality and Privacy – Personal Health Information

28. Nurses have ethical and legal obligations to maintain the confidentiality of patient health information. One way that nurses maintain and build this trust between themselves and patients is by ensuring that patients’ privacy rights and expectations are respected. Therefore, express consent is generally needed when personal health information is disclosed outside of the health care team.

29. The Confidentiality and Privacy practice standard permits the sharing of personal health information among health care team members in order to facilitate efficient and effective care. The health team includes all those providing care to patients.

Therapeutic Nurse-Client Relationship

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

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

32. The TNCR Standard specifies that therapeutic nursing services “contribute to the [patient’s] health and well-being” and that a meaningful relationship is built upon 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.”

33. 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:

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;

c. providing information to promote [patient] choice and enable the [patient] to make informed decisions; and

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

ADMISSIONS OF PROFESSIONAL MISCONDUCT

34. The Member admits that his examination of the Patient without consent was neither permitted nor required within the context of his role as a Placement Instructor and Clinical Supervisor, and therefore, was a breach of the standards of practice as set out in CNO’s Professional Standards.

35. The Member admits that he had a limited role and limited authority as a Placement Instructor and Clinical Supervisor whose job was to attend the Facility and monitor the PSW Program student to whom he was assigned. He was not a member of the Patient’s health care team. He admits that his conduct was a breach of the standards of practice as set out in the CNO’s Professional Standards and the Confidentiality and Privacy practice standard.

36. The Member admits that he put himself in a situation in which a kiss occurred with the Patient, and that by examining her unnecessarily and failing to identify his role and establish clear boundaries with the Patient, he breached the standards of practice as set out in the TNCR Standard.

37. As such, the Member admits that he committed the acts of professional misconduct in paragraphs 1 (a), 1(b) and 1(d) of the Notice of Hearing, as described in paragraphs 10-20 above, in that he breached the standards of the profession by examining the Patient without consent, examined/reviewed her chart without authorization and breached therapeutic nurse-patient boundaries in his interaction with the Patient, as alleged.

38. The Member admits that he committed the acts of professional misconduct in paragraphs 2(a), 2(b) and 2(d) of the Notice of Hearing, as described in paragraphs 10-20 above, and in particular, that his conduct involving the Patient was disgraceful, dishonorable and unprofessional, as alleged.

39. CNO seeks leave to withdraw the allegations of professional misconduct in paragraphs 1(c) and 2(c) of the Notice of Hearing.

College Counsel’s Submissions

College Counsel submitted that in the Agreed Statement of Facts the Member made admissions to the allegations. With respect to allegation 1(a) in the Notice of Hearing the Member admitted he examined the patient without consent and that this was a breach of nursing professional standards. Counsel submitted that the Member admitted he should not have examined the patient nor did he have consent to do so. The Agreed Statement of Facts also included statements that referenced College Practice Standards regarding patient consent.

With respect to allegation 1(b) Counsel submitted that the Member admitted he accessed and reviewed the patient’s chart which was not required or appropriate in his role as a Placement Instructor and Clinical Supervisor for the PSW Program. The Agreed Statement of Facts also included statements from the Therapeutic Nurse-Client Relationship Practice Standard that makes reference to appropriate and professional boundaries.

With respect to allegation 1(d) Counsel submitted that the Member admitted that it was unnecessary for him to examine the patient and by doing so he created a situation of proximity with the patient that enabled a kiss to occur with the patient. The Agreed Statement of Facts also included statements from the Therapeutic Nurse-Client Relationship Practice Standard that makes reference to appropriate and professional boundaries.

With respect to allegation 2(a), 2(b) and 2(d), Counsel submitted the Member admitted to the evidence and allegations for conduct that is disgraceful, dishonorable and unprofessional. Additionally, a finding of professional misconduct can be made based on conduct that is either disgraceful, dishonorable or unprofessional; i.e. only one of the conditions need to be present for a finding of professional misconduct to be made. The boundary breach should be considered unprofessional. The Member also acted dishonorably as he should have known he was violating professional standards. Counsel submitted the Member’s conduct was disgraceful as the patient was a vulnerable patient and the Member had no reason to directly engage with her.

Member’s Submissions

The Member stated that he accepted the interpretation of the events, admits the allegations and acknowledges that it was wrong.

The Panel asked for further submission to support the allegation that the Member’s conduct met the definition of disgraceful. College Counsel submitted that the Member’s admissions to dishonourable, disgraceful and unprofessional conduct was voluntary and informed. In the absence of a therapeutic nurse-client relationship between the Member and this vulnerable patient, College Counsel submitted the conduct meets the disgraceful threshold.

The Member responded he did not understand the response from College but legalities aside, he stated that he “acted as a nurse”.

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(d), 2(a), 2(b) and 2(d) of the Notice of Hearing. As to allegations 2(a), 2(b) and 2(d), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonorable 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), 1(b) and 1(d) in the Notice of Hearing are supported by paragraphs 10 through 22, 24 and 27 through 37 in the Agreed Statement of Facts. The Member stated that he examined the Patient out of concern for her well-being, given the visual injuries and her vulnerable nature. While the College’s Professional Standards state that nurses are expected to advocate for patients, advocacy needs to be done appropriately and within the standards set by the profession. In this situation, the Member conducted an assessment that was beyond his role as a Placement Instructor and Clinical Supervisor for the PSW Program since he was not in the Patient’s circle of care. The Patient was also very vulnerable and unable to provide informed consent for an examination. Because of the Patient’s frailty, the Member should have also been more cautious about engaging in an assessment when he was not in the circle of care and which was also outside a therapeutic nurse-client relationship. As per the College’s TNCR Standard, it was the Member’s responsibility to set and maintain appropriate professional boundaries and also be aware how verbal or non-verbal communication may be perceived by patients. The Member’s actions further enabled a situation where a kiss took place between the Member and the Patient, a clear violation of the therapeutic nurse-client relationship. Later in the shift, the Member accessed the Patient’s chart without permission. This was also a violation of the Confidentiality and Privacy Practice Standard since the Member was outside the circle of care and did not have express consent to access the chart.

Allegations 2(a), 2(b) and 2(d) in the Notice of Hearing are supported by paragraphs 10 through 22, 24, 25, 27 through 36 and 38 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct was unprofessional and dishonorable. The Member was an experienced nurse and ought to have known the Professional Standards, the TNCR Standard and the Confidentiality and Privacy Standard. The Member assessed a vulnerable patient without consent and also when he was not in the circle of care. The Member acted beyond his role as a Placement Instructor and Clinical Supervisor. The Member also accessed the Patient's chart without consent. As a regulated and experienced professional, the Member ought to have known he crossed multiple boundaries. The Member disregarded the standards and in so doing, demonstrated a serious and persistent disregard for his professional obligations. There was an element of moral failing to meet multiple standards which the Panel found as not only unprofessional, but also dishonorable.

The Panel deliberated as to whether the Member’s conduct could also be considered disgraceful. Disgraceful conduct is reserved for the most egregious and extreme elements of misconduct where there is a greater knowledge of the wrongfulness of the act and the conduct shames the member and the profession. The Panel reviewed the Agreed Statement of Facts which stated the Patient had visible signs of injury. The Member also stated he conducted the examination out of concern for the Patient’s well-being and that he was acting on his instinct as a nurse to provide care. The Member did not attempt to conceal his actions and he stated he regretted his actions. Considering this, the Panel found the Member’s conduct, while naïve, lacking good judgement and a breach of multiple standards, did not meet the threshold for disgraceful conduct.

Penalty

College Counsel and the Member 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 submitted that the Joint Submission on Order also provides in Appendix “A” an Undertaking by the Member whereby the Member permanently resigns his membership with the College in respect of all his certificates effective February 23, 2021. The Undertaking includes the Member’s commitment to not practice nursing in Ontario in the future and that the public register will reflect this Undertaking. The Member will also no longer have the right to hold himself as a nurse who is qualified to practice in Ontario. The Undertaking will also be available to other nursing regulators.

College Counsel further submitted that the penalty meets the goals of specific and general deterrence. The reprimand will meet the goal of specific deterrence. General deterrence is met as the penalty sends a message to members of the profession that conduct of this nature is serious and will not be tolerated. Public protection is met as the Member will no longer be practicing nursing.

College Counsel also submitted that the mitigating factors in this case were the Member’s long history with the College with no discipline on record. Despite an expired membership from April 19, 2018, the Member also cooperated with the College, has remained involved in the discipline process and has taken accountability through the Plea Inquiry and attendance at the hearing. His agreement to resign his membership is also appropriate.

The aggravating factors in this case were the boundaries breach, the vulnerability of the Patient and the Member’s review of the chart with no reason or consent to do so.

Remediation and rehabilitation are not applicable in this case as the Member has undertaken to not return to practice.

Overall, the public is protected because the member has resigned all membership with the College and will no longer be practicing nursing.

There were no submissions on penalty from the Member.

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 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. The oral reprimand will meet the goal of specific deterrence. General deterrence is met through the strong message to members of the profession that this type of conduct will not be tolerated. The ultimate goal of public protection is met through the Member’s undertaking to permanently resign from the practice of nursing. The need for remediation and rehabilitation is not required since the Member will no longer be practicing nursing.

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.