DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL:
Tanya Dion, RN Chairperson Neil Hillier, RPN Member Carly Hourigan Public Member Mary MacNeil, RN Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) DENISE COONEY for ) College of Nurses of Ontario
- and - )
MARK RAMOS ) PHILIP B. ABBINK for Registration No. 0306977 ) Mark Ramos ) CHRISTOPHER WIRTH ) Independent Legal Counsel ) Heard: February 2, 2022
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 February 2, 2022, 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(s) of the patient(s), or any information that could disclose the identity(ies) of the patient(s), referred to orally or in any documents presented in the Discipline hearing of Mark Ramos.
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(s) of the patient(s), or any information that could disclose the identity(ies) of the patient(s), referred to orally or in any documents presented in the Discipline hearing of Mark Ramos.
The Allegations
The allegations against Mark Ramos (the “Member”) as stated in the Notice of Hearing dated December 7, 2021 are as follows:
IT IS ALLEGED THAT:
- 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 employed as a Registered Nurse at the University Health Network – Toronto General Hospital, in Toronto, Ontario (the “Hospital”), you sexually abused a patient, in that:
(a) between February 2019 and April 2019, you made remarks of a sexual nature towards [the Patient]; and/or
(b) in or about February 2019 and March 2019, you engaged in sexual intercourse and/or other forms of physical sexual relations with [the Patient].
- 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 employed as a Registered Nurse at the Hospital, 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 around January 2019, you took a photograph of [the Patient] during the course of providing her care, for no clinical purpose and without her consent;
(b) in or around January 2019, you disclosed your personal information to [the Patient] for no specific therapeutic need, including but not limited to information about a bar associated with your brother;
(c) in or around February 2019, you asked [the Patient] for her personal contact information for no clinical purpose;
(d) between February 2019 and April 2019, you made remarks of a sexual nature towards [the Patient];
(e) between February 2019 and April 2019, you communicated with [the Patient] by text message for no clinical purpose;
(f) in February 2019 and March 2019, you met with [the Patient] in person outside of the therapeutic relationship;
(g) in February 2019 and March 2019, you engaged in sexual intercourse and/or other forms of physical sexual relations with [the Patient];
(h) you took photographs of patient(s) in the course of providing them with care, for no clinical purpose, and without their consent;
(i) in March 2019, you provided [the Patient] photos of other patients without their consent; and/or
(j) in November 2020 and December 2020, you communicated with [the Patient] by phone and text message for no clinical purpose.
- 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 Hospital, you abused a patient verbally, physically and/or emotionally in that:
(a) in or around January 2019, you took a photograph of [the Patient] during the course of providing her care, for no clinical purpose and without her consent;
(b) between February 2019 and April 2019, you made remarks of a sexual nature towards [the Patient];
(c) in February 2019 and March 2019, you engaged in sexual intercourse and/or other forms of physical sexual relations with [the Patient]; and/or
(d) you took photographs of patient(s) in the course of providing them with care, for no clinical purpose, and without their consent.
- 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 Hospital, you engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional with respect to the following incidents:
(a) in or around January 2019, you took a photograph of [the Patient] during the course of providing her care, for no clinical purpose and without her consent;
(b) in or around January 2019, you disclosed your personal information to [the Patient] for no specific therapeutic need, including but not limited to information about a bar associated with your brother;
(c) in or around February 2019, you asked [the Patient] for her personal contact information for no clinical purpose;
(d) between February 2019 and April 2019, you made remarks of a sexual nature towards [the Patient];
(e) between February 2019 and April 2019, you communicated with [the Patient] by text message for no clinical purpose;
(f) in February 2019 and March 2019, you met with [the Patient] in person outside of the therapeutic relationship;
(g) in February 2019 and March 2019, you engaged in sexual intercourse and/or other forms of physical sexual relations with [the Patient];
(h) you took photographs of patient(s) in the course of providing them with care, for no clinical purpose, and without their consent;
(i) in March 2019, you provided [the Patient] photos of other patients without their consent; and/or
(j) in November 2020 and December 2020, you communicated with [the Patient] by phone and text message for no clinical purpose.
College Counsel advised the Panel that the College was not calling any evidence with respect to the allegations set out in paragraphs 2(a), 3(a) and 4(a) of the Notice of Hearing. The Panel dismissed these allegations.
Member’s Plea
The Member admitted the allegations set out in paragraphs 1(a), (b), 2(b), (c), (d), (e), (f), (g), (h), (i), (j), 3(b), (c), (d), 4(b), (c), (d), (e), (f), (g), (h), (i) and (j) 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 and without including the appendices mentioned therein reads, unedited, as follows:
THE MEMBER
Mark Ramos (the “Member”) obtained a diploma in nursing from Conestoga College in 2002.
The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse on March 24, 2003 in the General Class. The Member’s certificate of registration was suspended from December 24, 2020 pursuant to a decision of CNO’s Discipline Committee as described below, until January 28, 2022 when the Member resigned his certificate of registration.
THE HOSPITAL
The Member was employed at the University Health Network – Toronto General Hospital (the “Hospital”). The Hospital terminated his employment on June 12, 2019 following the Hospital’s investigation into the incidents described in the Prior History section below.
The Member worked in the Liver Clinic at the Hospital (the “Clinic”) as a liver disease specialty nurse who coordinated treatment and follow-up care for chronic liver disease patients under the supervision of [the Doctor].
PRIOR HISTORY
On December 22, 2020, a panel of CNO’s Discipline Committee (the “Panel”) found that the Member committed acts of professional misconduct in relation to a patient receiving treatment at the Clinic.
CNO and the Member presented the Panel with an Agreed Statement of Facts in which the Member admitted that, between January 2018 and June 2018, he:
Made remarks of a sexual nature to the patient;
Engaged in a personal relationship with the patient; and
Failed to maintain the boundaries of the therapeutic nurse-patient relationship with the patient when he:
o communicated by text message with the patient outside of the therapeutic relationship;
o inappropriately communicated diagnostic information to the patient; and
o met with the patient outside of the therapeutic relationship.
- Based on the Agreed Statement of Facts and the Member’s admissions, the Panel found that the Member:
Sexually abused the patient;
Breached the standards of practice of the profession or failed to meet the standards of practice of the profession;
Abused the patient verbally and emotionally; and
Engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional.
- CNO and the Member presented the Panel with a Joint Submission on Order requesting that the panel make an order that contained the following:
An oral reprimand;
An 18-month suspension; and
Terms, conditions and limitations, including:
o attending a minimum of 2 meetings with a Regulatory Expert; and
o employer notification for 24 months.
The Panel accepted the Joint Submission on Order, concluding that the proposed penalty was reasonable and in the public interest.
It was also alleged that the Member engaged in sexual intercourse and/or other forms of physical sexual relations with the patient and that he purchased alcoholic beverages for the patient though her plan of care specified she avoid alcohol. CNO did not lead evidence on these allegations because the patient died prior to the hearing. As a result, the Panel dismissed these allegations. A copy of the Panel’s Decision and Reasons is attached at Exhibit “A”.
THE PATIENT
[The Patient] (the “Patient”) was a 50 year-old female being seen by [the Doctor] at the Clinic for chronic Hepatitis B and fatty liver.
The Member provided care to the Patient at the Clinic.
INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT
Clinic Interactions
On January 23, 2019, the Member conducted a fibroscan test on the Patient at the Clinic. During this appointment, the Member spoke to the Patient about his brother’s bar, called [ ], on [ ] in Toronto, and he suggested they go there.
In early February 2019, the Patient had a follow-up appointment at the Clinic. During this appointment, the Member asked the Patient for her phone number and he began texting her. They also communicated using WhatsApp messenger. The text messages the Member and the Patient exchanged are summarized below. The text messages extracted from the Patient’s cell phone are attached at Exhibit “B”, and the WhatsApp messages extracted from the Patient’s cell phone are attached at Exhibit “C”.
Text Messages & Sexual Intercourse
On February 7, 2019, the Patient and the Member started exchanging extensive personal text messages. They begin by discussing where they lived in the Toronto area as well as their family backgrounds and history, including past marriages and relationships.
On February 9 and 10, 2019, the text messages became increasingly sexual in nature. The text messages included discussions of foot fetish/worship, “other fetishes”, watching pornography, penis size, and the Member’s preference for missionary style sex. The Patient asks that, if the Member does decide to sleep with her, he “NEED[s] to take control please”. The Member responded, “Oh for sure I will.” At one point, the Member texted the Patient that they had “to discuss this”, as “I don’t want any of us getting into trouble under the circumstances of how we know each other”. They discussed at length how they “first met” at the Clinic.
In addition, on February 9, 2019, when discussing their concerns about initiating a relationship, the Patient asked why she has to “initiate” and the Member responded, “For me, I don’t want to lose my lose my license or license to practice”. During this conversation the Patient expressed, “My concern is I don’t want to feel awkward about coming there. So if we try something and it doesn’t work we need to behave like adults and if you can’t do that we can do anything”. Later in the conversation the Patient also stated, “I know we’re adults so if you think you can still be professional with me if things go wrong that’s fine but if you can’t we got a problem cause that would mean I need to find a new doctor and from what I understand [the Doctor]’s pretty great so I don’t want to loose that because we played Russian roulette. So you need to figure it out”. The Member then responded, “I understand and no matter what happens you don’t lose him as your primary doc”.
On February 10, 2019, the Member attended the Patient’s residence and they engaged in sexual intercourse. Following the interaction, the Member texted the Patient, “Knees are wobbly”. The Patient replied, “I hope I lived up to your expectations lol” “Taste and being inside haha” and the Member responded, “Same I hope I did”.
The Member and the Patient continued to exchange personal text messages between February and April 2019. The Member went on a one-month vacation to the Philippines around mid-February 2019 and continued to send the Patient extensive text messages during this time.
In one text exchange, the Patient asked the Member for his last name “so I can change your name from ‘Mark Hospital’ to mark whoever please lol. Hospital stresses me out when I see it”. The Member then told the Patient his last name, Ramos.
Over the course of their texting relationship, the Member and the Patient exchanged text messages including messages about what they were eating, shopping trips, and wishing each other goodnight.
The Member and the Patient also exchanged numerous text messages that were expressly sexual and refer to the fact that they engaged in sexual intercourse. The Member also sent the Patient multiple text messages with pictures of himself, including photos of his penis. In reference to a photo of his penis, the Member texted, “took a pic as it was growing”, “I loved it [being] inside you” “Your pussy felt sooo good”.
In addition, the Member sent the Patient messages acknowledging that the relationship was not permitted. For example, on one occasion, the Member stated he is “…afraid of getting into trouble of it doesn’t work” and that the Patient would “complain or something to the hospital or college”.
The Member returned from vacation around March 8, 2019. The following day, on March 9, 2019, the Member attended the Patient’s residence and engaged in sexual intercourse a second time.
The Member and the Patient engaged in sexual intercourse a third time on March 18, 2019. The Member took the Patient out for food and drinks after this encounter.
In early April 2019, the Member mentioned a situation to the Patient with “another patient” and he told her he no longer wanted to be in contact. The Member asked the Patient to delete the messages that they exchanged and told her that once the situation was resolved with the other patient, he would contact the Patient and explain everything.
On April 11, 2019, as the Patient was boarding a flight to go on vacation, she sent the Member a text message stating, “I said from the start I just wanted to have fun with you. I’ve never opened up to anyone about my past and I liked being with you. I was excited about the adventure with you. Now everything is so complicated I want to cry.”
The Patient did not hear from the Member again until November 24, 2020, when the Member reached out to the Patient to “say hi and see how you’re doing”. The Member and the Patient exchanged messages for several weeks into December 2020 and discussed plans to make a trip together to purchase cannabis.
On December 10, 2020, the Member placed four calls to the Patient which lasted between 2 minutes 45 seconds and 2 hours and 17 minutes. On December 14, 2020, the Member placed another call to the Patient which lasted 46 minutes and 24 seconds.
Privacy Breaches
- During the course of their relationship, the Member disclosed personal health information about other patients to the Patient. On one occasion, the Member texted her photographs of other patients and described, “Because of liver disease and the liver is damaged. A lot of fluid is collected in the tummy. I remove it.” “Cirrhosis causes ascities. Cirrhosis is caused by a few things. Hep C, Heb B, fatty, autoimmune alcohol”. The Patient responded, “Are those two different tummies or the same person” and the Member replied, “Same person” “Sorry two different”.
HEALTH PROFESSIONS PROCEDURAL CODE
- The Health Professions Procedural Code (Schedule 2 to the Regulated Health Professions Act, 1991 SO 1991, c 18 (“Code”) defines sexual abuse of a patient by a member in s. 1(3) as:
(a) sexual intercourse or other forms of physical sexual relations between the member and the patient,
(b) touching, of a sexual nature, of the patient by the member, or
(c) behaviour or remarks of a sexual nature by the member towards the patient.
- For the purposes of the definition of “sexual abuse”, the Code defines “patient” as including an individual who was a member’s patient within one year or such longer period of time as may be prescribed from the date on which the individual ceased to be the member’s patient.
CNO STANDARDS
Code of Conduct
- CNO’s Code of Conduct is a standard of practice describing the accountabilities all Ontario nurses have to the public. The Code of Conduct consist of six principles including:
Nurses respect the dignity of patients and treat them as individuals;
Nurses work together to promote patient well-being;
Nurses maintain patients’ trust by providing safe and competent care;
Nurses work respectfully with colleagues to best meet patients’ needs;
Nurses act with integrity to maintain patients’ trust; and
Nurses maintain public confidence in the nursing profession.
- Regarding the principle requiring nurses to act with integrity to maintain patients’ trust, CNO’s Code of Conduct provides that:
Nurses protect the privacy and confidentiality of patients’ personal health information;
Nurses maintain professional boundaries with patients; and
Nurses do not engage in any sexual relationship with patients while caring for them.
- CNO’s Code of Conduct defines boundaries as:
The points when a relationship changes from professional and therapeutic to unprofessional and personal. Therapeutic nurse-patient relationships put patients’ needs first. Crossing a boundary means a nurse is misusing their power and trust in the relationship to meet personal needs, or behaving in an unprofessional manner with the patient. Crossing a boundary can be intentional or unintentional
Professional Standards
CNO’s Professional Standards provides an overall framework for the practice of nursing and a link with other standards, guidelines and competencies developed by CNO. It includes seven broad standard statements pertaining to accountability, continuing competence, ethics, knowledge, knowledge application, leadership and relationships.
CNO’s Professional Standards provides, in relation to the accountability standard, that nurses are accountable to the public and responsible for ensuring her or his practice and conduct meets the legislative requirements and the standard of the profession. Nurses are responsible for their actions and the consequences of those actions as well as for conducting themselves in ways that promote respect for the profession. Nurses demonstrate this standard by actions such as ensuring their practice is consistent with CNO’s standards of practice and guidelines as well as legislation.
CNO’s Professional Standards further provides, in relation to the ethics standard, that ethical nursing includes acting with integrity, honesty and professionalism in all dealings with the patient and other health care team members. A nurse demonstrates having met this standard by actions such as identifying ethical issues and communicating them to the healthcare team.
CNO’s Professional Standards also provides, in relation to the relationship standard and the therapeutic nurse-patient relationship, that a nurse demonstrates this standard by:
Maintaining boundaries between professional therapeutic relationships and non-professional personal relationships;
Ensuring patients’ needs remain the focus of nurse-[patient] relationships;
Ensuring his or her personal needs are met outside of the therapeutic nurse-[patient] relationships; and
Recognizing the potential for patient abuse.
- In addition, CNO’s Professional Standards further provides, in relation to the leadership standard, that a nurse demonstrates leadership by actions such as role-modelling professional values, beliefs and attributes.
Therapeutic Nurse-Client Relationship
CNO’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) contains four standard statements which describe nurses’ accountabilities with respect to therapeutic communication, patient-centred care, maintaining boundaries and protecting the patient from abuse. The TNCR Standard provides that the nurse-patient relationship is built on trust, respect, empathy, professional intimacy and requires the appropriate use of power inherent in the care provider’s role.
CNO’s 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.” CNO’s TNCR Standard places the responsibility for establishing and maintaining the limits and boundaries in the therapeutic nurse-patient relationship on the nurse. CNO’s 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].
- CNO’s TNCR Standard provides, in relation to maintaining boundaries, that nurses meet this standard by:
Setting and maintaining the appropriate boundaries within the relationship, and helping [patients] understand when their requests are beyond the limits of the therapeutic relationship;
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, giving a gift to or accepting a gift from a [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;
Abstaining from disclosing personal information, unless it meets an articulated therapeutic need of the [patient];
Consulting with colleagues and/or the manager in any situation in which it is unclear whether a behaviour may cross a boundary of the therapeutic relationship.
- CNO’s TNCR Standard defines abuse as:
[T]he misuse of the power imbalance intrinsic in the nurse-[patient] relationship. It can also mean the nurse betraying the [patient]’s trust, or violating the respect or professional intimacy inherent in the relationship, when the nurse knew, or ought to have known the action could cause, or could be reasonably expected to cause physical, emotional or spiritual harm to the [patient].
CNO’s TNCR Standard proves that abuse may be verbal, emotional, physical, sexual, financial, or take the form of neglect. The TNCR Standard further provides that sexual abuse includes, but is not limited to, sexually demeaning, seductive, suggestive, exploitative, derogatory or humiliating behaviour, comments or language toward a patient.
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:
not entering a friendship, or a romantic, sexual or other personal relationship with a [patient] when a therapeutic relationship exists; and
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).
Confidentiality and Privacy: Personal Health Information
- CNO’s Confidentiality and Privacy: Personal Health Information standard largely incorporates the Personal Health Information Protection Act, 2004 and requires that personal health information be kept confidential and secure. Nurses comply with this standard by actions such as:
Maintaining confidentiality of [patients’] personal health information with members of the health care team, who are also required to maintain confidentiality, including information that is documented or stored electronically; and
Collecting only information that is needed to provide care.
The Member admits and acknowledges that he contravened CNO’s Code of Conduct, Professional Standards and TNCR Standard when he: disclosed his personal information to the Patient for no specific therapeutic need, asked the Patient for her personal contact information for no clinical purpose, made remarks of a sexual nature towards the Patient, communicated with the Patient for no clinical purpose, met with the Patient outside of the therapeutic relationship, engaged in sexual intercourse and other forms of physical sexual relations with the Patient and communicated by the Patient by phone for no clinical purpose.
The Member further admits and acknowledges that he contravened CNO’s Code of Conduct and Confidentiality and Privacy: Personal Health Information standard when he took photographs of patients in the course of providing them with care, for no clinical purpose and without their consent and when he provided the Patient with photographs of other patients without their consent.
ADMISSIONS OF PROFESSIONAL MISCONDUCT
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 1 (a) and (b) of the Notice of Hearing in that he sexually abused the Patient, as described in paragraphs 13 to 29, 31 to 32 and 44 to 46 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 2 (b), (c), (d), (e), (f), (g), (h), (i) and (j) of the Notice of Hearing in that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as described in paragraphs 13 to 49 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 3 (b), (c), and (d) of the Notice of Hearing in that he abused the Patient verbally and emotionally, as described in paragraphs 13 to 29, 31 to 32 and 44 to 46 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 4 (b), (c), (d), (e), (f), (g), (h), (i) and (j) of the Notice of Hearing, and in particular his conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 13 to 49 above.
CNO led no evidence with respect to the Member taking a photograph of the Patient during the course of providing her care for no clinical purpose and without her consent, as alleged in paragraphs 2(a), 3(a) and 4(a) of the Notice of Hearing.
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(b), (c), (d), (e), (f), (g), (h), (i), (j), 3(b), (c), (d), 4(b), (c), (d), (e), (f), (g), (h), (i) and (j) of the Notice of Hearing. With respect to allegations #3(b), (c) and (d), the Panel finds that the Member verbally and emotionally abused the Patient. As to allegations #4(b), (c), (d), (e), (f), (g), (h), (i) and (j), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be disgraceful, dishonorable and unprofessional.
No evidence was led with respect to allegations 2(a), 3(a) and 4(a). These allegations are dismissed.
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) and (b) in the Notice of Hearing are supported by paragraphs 15-29, 31-46, 48 and 50 in the Agreed Statement of Facts. College Counsel presented over 2200 pages of evidence containing explicit text messages of a sexual nature toward [the Patient], including reference to sexual intercourse that happened within three weeks of the Member treating [the Patient] in the clinic. The Member’s conduct meets the definition of sexual abuse as defined by the Health Professions Procedural Code ( the “Code”), the relevant sections of which are set out in paragraphs 31 and 32 of the Agreed Statement of Facts. The Member also admitted to this allegation in paragraph 50 of the Agreed Statement of Facts.
Allegations #2(b), (c), (d), (e), (f), (g), (h), (i) and (j) in the Notice of Hearing are supported by paragraphs 11-49 and 51 in the Agreed Statement of Facts. The Member disclosed personal information to [the Patient], asked for [the Patient]’s personal contact information and then communicated with her via text for no clinical purpose. The Member also made remarks of a sexual nature towards [the Patient] and also engaged in sexual intercourse with her. The Member met with [the Patient] outside the therapeutic relationship and also shared photos of other patients without their consent. These activities were a gross violation of multiple College standards including the Code of Conduct, the Professional Standards, the Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) and the Confidentiality and Privacy: Personal Health Information Standard. The Member violated boundaries, abused the trust of [the Patient], sexually abused her and disrespected other patients by sharing photos without their consent. The Member did not act with integrity, honesty and respect for his patients or his profession as he is required to by the College’s standards. Rather, the Member acted to meet his own personal needs.
Allegations #3(b), (c) and (d) in the Notice of Hearing are supported by paragraphs 11-49 and 52 in the Agreed Statement of Facts. For this allegation, the Panel has found that the Member verbally and emotionally abused the patient. These are violations of the College’s Code of Conduct, the Professional Standards and the TNCR Standard. There was a misuse of trust and power by the Member and a power imbalance between the Member and [the Patient] which the Member exploited for his own personal gain.
With respect to allegations 4(b), (c), (d), (e), (f), (g), (h), (i) and (j), the Panel finds that the Member’s conduct was disgraceful, dishonorable and unprofessional. It was clearly relevant to the practice of nursing and was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations. The Member knowingly violated numerous College standards and knew that his actions could potentially result in a revocation of his license to practice as evidenced by paragraphs 16, 17, 23 and 26 in the Agreed Statement of Facts. Despite this knowledge, the Member continued a sexual relationship with [the Patient]. The Member’s conduct is similar to the findings made against the Member for unprofessional conduct by a panel of the Discipline Committee on December 22, 2020. The Member’s conduct is evidence of a pattern of disregard for his professional obligations and patient abuse.
The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit. He violated a patient’s trust and sexually abused a patient. He took pictures of patients without their consent and then proceeded to share them with [the Patient]. These were deceitful and deplorable behaviors. The Member knew or ought to have known that his conduct 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 Member violated the sacred trust patients have in nurses that the nurse providing care will behave with integrity, will respect and uphold patient dignity and not abuse their power. The Member showed a flagrant disregard for his fundamental obligations, preying on a vulnerable patient for the purposes of his own sexual gratification. That his conduct was similar to his behavior from a 2020 College hearing, casts no doubt on the Member’s lack of moral fitness and inherent ability to discharge the higher obligations the public expects from nurses.
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 3 months of the date that this Order becomes final.
Requiring the Member to reimburse CNO 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 in accordance with the Health Professions Procedural Code and O. Reg. 59/94.
Directing the Executive Director to immediately revoke the Member’s certificate of registration.
Penalty Submissions
Submissions were made by College Counsel.
College Counsel submitted that the Member’s certificate of registration had to be revoked under the Code given the findings of sexual abuse. Further, although the Member resigned last week, the Panel still has jurisdiction over him for conduct when he was a member.
The aggravating factors in this case were the Member’s prior history with the College for his conduct in 2018. The Agreed Statement of Facts provided evidence that the Member had a history of remarkably similar conduct with another patient at the same clinic. In that case, the Member made remarks of a sexual nature, had a personal relationship with the patient, failed to keep appropriate therapeutic boundaries, inappropriately communicated diagnostic information and was abusive to the patient. Allegations of sexual intercourse were dismissed in that case. College Counsel submitted that the patient died before the hearing and, as a result, the College was unable to call evidence regarding the allegations of sexual intercourse.
In 2019 the Member engaged in multiple counts of sexual abuse and breached several College standards. He exploited his position of trust as a professional for his own gratification. The text messages entered into evidence provide a first-hand look of the relationship the Member had with the Patient. The messages show no therapeutic value to any of the communications. The communications also took place over a period of time resulting in multiple sexual episodes. The text messages also show that the Member was aware that his conduct was contrary to his professional standards but nevertheless he continued with the texts and multiple sexual interactions. Before the Member took accountability through the College proceedings, he asked [the Patient] to delete the text messages from her phone. College Counsel submitted that the Member also breached the other patients’ trust when he took photos of them and shared them with [the Patient]. Overall the Member showed a disturbing disregard for patients as individuals.
As a mitigating factor, College Counsel submitted that the Member accepted responsibility for his actions, entered into a resolution, admitted the allegations and agreed to an Agreed Statement of Facts and a Joint Submission on Order.
College Counsel submitted that the penalty satisfies the overall goal of a penalty order to protect the public as the Order will remove the Member from practice. General deterrence is also met as the revocation of the Member’s registration sends a strong message to the profession that conduct of this nature is unacceptable. Revocation also addresses specific deterrence and informs the public that the College has the ability to self-regulate. Remediation and rehabilitation are not necessary as the Member will no longer be practicing.
College Counsel submitted the following cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee.
CNO v. Haringa (Discipline Committee, 2020): In this case, the member engaged in behavior and/or remarks of a sexual nature as well as a sexual and personal relationship with two patients. The penalty included an oral reprimand, revocation of the member’s certificate of registration and the requirement for the member to reimburse the College for funding provided to the patients, if necessary, under the program required by s. 85.7 of the Health Professions Procedural Code, up to $10,000.00.
CNO v. Hubercheck (Discipline Committee, 2018): In this case, the member engaged in a sexual relationship with a patient. The penalty included an oral reprimand and revocation of the member’s certificate of registration.
CNO v. Pezzano (Discipline Committee, 2020): In this case, the member engaged in touching of a sexual nature, made remarks of a sexual nature, communicated outside the therapeutic relationship and engaged in a sexual relationship with a patient. The penalty included an oral reprimand, revocation of the member’s certificate of registration and the requirement for the member to reimburse the College for funding provided to the patient, if necessary, under the program required by s. 85.7 of the Health Professions Procedural Code, up to $5,000.00.
Submissions were made by the Member’s Counsel.
The Member’s Counsel conceded that Section 51(5) of the Code requires the Panel to order a reprimand and revocation given the finding of sexual intercourse and as such the Panel had to accept the Joint Submission on Order. The Member’s Counsel also submitted a few mitigating factors, namely that the Member pled guilty to the allegations avoiding a need for the complainants to testify. He accepted accountability and accepted a penalty that is consistent with other similar cases. While not mandatory, the Member has also agreed to the terms for reimbursement of counselling.
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 3 months of the date that this Order becomes final.
The Member is required to reimburse CNO 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 in accordance with the Health Professions Procedural Code and O. Reg. 59/94.
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 provisions of the Code make revocation of the Member’s certificate of registration and a reprimand mandatory given the Panel’s findings of sexual abuse. Accordingly, 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. The proposed penalty provides for general deterrence through the revocation of the Member’s certificate of registration. Specific deterrence is provided through the oral reprimand and the revocation of the Member’s certificate of registration. Public protection is served as the Member will no longer practice nursing. Because of the revocation, rehabilitation and remediation are not required.
The penalty is also in line with what has been ordered in previous cases in similar circumstances.
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.