College of Nurses of Ontario v. Jessie Anderson, 2022 CanLII 136848

minicounsel

PANEL: Michael Hogard, RPN Chairperson Jay Armitage Public Member Sandra Larmour Public Member Mary MacNeil, RN Member Donna May, RPN Member

BETWEEN:

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

and - )

JESSIE ANDERSON ) NO REPRESENTATION for Registration No. AC887350 ) Jessie Anderson ) CHRISTOPHER WIRTH ) Independent Legal Counsel ) Heard: November 3, 2022

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 3, 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 at the Discipline hearing of Jessie Anderson.

The Panel considered the submissions of College Counsel and Member 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 at the Discipline hearing of Jessie Anderson.

The Allegations

The allegations against Jessie Anderson (the “Member”) as stated in the Notice of Hearing dated September 30, 2022 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 registered as a Registered Practical Nurse (“RPN”) and/or while employed at Homewood Health Centre in Guelph, Ontario (the “Facility”), you sexually abused a patient, as follows:

a. between May 2019 and March 2020, you engaged in physical sexual relations with and/or touching of a sexual nature of Patient [A] within one year of [Patient A]’s discharge from the Facility; and/or

b. between May 2019 and March 2020, you engaged in behaviour and/or made remarks of a sexual nature toward [Patient A] while [Patient A] was a patient at the Facility and/or within one year of [Patient A]’s discharge from the Facility; 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(1) of Ontario Regulation 799/93, in that while registered as a Registered Practical Nurse (“RPN”) and/or while employed at Homewood Health Centre in Guelph, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, in that,

a. between May 2019 and March 2020, you engaged in physical sexual relations with and/or touching, of a sexual nature, of Patient [A] within one year of [Patient A]’s discharge from the Facility;

c. between May 2019 and March 2020, you failed to appropriately establish and/or maintain the boundaries of the therapeutic nurse-client relationship with Patient [A] by carrying on a personal relationship, romantic relationship and/or sexual relationship with Patient [A] while [Patient A] was a patient at the Facility and/or within one year of [Patient A]’s discharge from the Facility;

d. in July 2019, you disclosed personal health information about Patient [B] to Patient [A] without consent; and/or

e. on February 8, 2021, after receiving Patient [A]’s personal health information from the College of Nurses of Ontario (“CNO”) for the sole purpose of preparing a response to CNO’s investigation, you told Patient [A] that you received the information and offered to discuss it with her; 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(10) of Ontario Regulation 799/93, in that while registered as a Registered Practical Nurse and/or while employed at Homewood Health Centre in Guelph, Ontario, you gave information about a client to a person other than the client or his or her authorized representative without the consent of the client or his or her authorized representative or as required or allowed by law, in that:

a. in July 2019, you disclosed personal health information about Patient [B] to Patient [A] without consent; 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 while registered as a Registered Practical Nurse (“RPN”) and/or while employed at Homewood Health Centre in Guelph, Ontario (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, as follows:

a. between May 2019 and March 2020, you engaged in physical sexual relations with and/or touching, of a sexual nature, of Patient [A] within one year of [Patient A]’s discharge from the Facility;

d. in July 2019, you disclosed personal health information about Patient [B] to Patient [A] without consent; and/or

Member’s Plea

The Member admitted the allegations set out in paragraphs #1(a), (b), #2(a), (b), (c), (d), (e), #3(a), #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 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

The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse on August 12, 2013.
The Member was suspended on an interim basis by the Inquiries, Complaints and Reports Committee (“ICRC”) from March 31, 2021 to January 15, 2022, when she resigned her certificate of registration.
The Member was employed as a full-time frontline nurse at Homewood Health Centre (the “Facility”) from July 2013 to November 4, 2019, when she resigned.

THE FACILITY

The Facility is located in Guelph, Ontario.
The Member was assigned to the Addictions Unit (the “Unit”) from August 18, 2017 to September 25, 2019. During this time, the Member was on leave from July 5, 2018 to August 31, 2018 and from August 18, 2019 to September 5, 2019.
From September 26, 2019 until the Member’s resignation in November 2019, the Member worked in the Complex Psychiatric Care unit at the Facility.
The Unit is an in-patient unit. Patients of the Unit have moderate to severe substance use disorders and, in some cases, other mental health diagnoses such as borderline personality disorder, depression, schizophrenia, and post-traumatic stress disorders.
Patients are assigned one or more prime nurses. Nursing staff at the Facility can access all patient charts. In addition, nursing staff may be asked to assist with the supervision of patients who are not assigned to the nurse from time-to-time, and nursing staff are present during staff reports about patients.
Nurses on the Unit are responsible for administering medication to patients, ensuring patients are doing mental status exams, attending to medical concerns and for crisis intervention. Nurses do not run therapeutic programming and do not provide psychotherapy in a group or individual setting. Nurses do run education-based groups.
The Unit also runs a comprehensive outpatient program (“Phase 3”) that is generally more intensive than regular outpatient care. The same staff from the Unit provide care to outpatients, and outpatients’ charts are accessible for the purpose of casework.
The Facility does not permit staff nurses to socialize with the Unit’s inpatients or outpatients, even if the nurse is not assigned as the patient’s prime nurse, during admission and for a period of one year post-discharge. All staff take a mandatory boundaries course upon hire.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Personal, Romantic and/or Sexual Relationship with Patient A

Patient [A] (“Patient A”) was an inpatient in the Unit from October 19, 2017 to January 3, 2018, and from May 12, 2019 to June 13, 2019. At the time of Patient A’s treatment in 2019, she was diagnosed with alcohol use disorder, stimulant (cocaine) use disorder and tobacco use disorder.
The Member was not Patient A’s prime nurse during Patient A’s time as an inpatient of the Unit in 2019. The Member did not make entries in Patient A’s chart, however, the Member had unrestricted access to it.
During Patient A’s time as an inpatient in 2019, the Member and Patient A interacted at meetings of the “Rainbow Group”, which was an LGBTQ+ peer support group that were facilitated by the Member.
While an inpatient in 2019, Patient A obtained a pass to be attend a Pride parade in the community. Patient A and the Member saw each other and interacted at the Pride parade.
Patient A and the Member had several non-clinical interactions in the Unit during Patient A’s time as an inpatient in 2019 including:

a. The Member and Patient A conversed occasionally in May 2019. If Patient A were to testify, Patient A would state that Patient A perceived that the Member was flirting during these interactions;

b. The Member regularly left snacks for Patient A in Patient A’s room;

c. Patient A and the Member divulged mutual romantic feelings while Patient A was still an inpatient;

d. The Member provided her personal e-mail address to Patient A prior to Patient A’s discharge from the Unit to Phase 3; and

e. The Member told Patient A that they had to keep their relationship secret because the Member could lose her job over their relationship.

Patient A was discharged as an inpatient on June 13, 2019. Patient A was then an outpatient in Phase 3 between June 19, 2019 and September 11, 2019.
The Member and Patient A engaged in a non-therapeutic relationship, including a sexual relationship, which began immediately after Patient A’s discharge in June 2019 while Patient A was still a Phase 3 outpatient. During this non-therapeutic relationship, the Member and Patient A engaged in conduct including:

a. The Member and Patient A connected and began exchanging Facebook messages hours after Patient A’s discharge on June 13, 2019;

b. The Member and Patient A booked a trip together on June 17, 2019;

c. The Member and Patient A had sexual relations, starting in June 2019, including oral sex, genital to genital contact, and sexual intercourse, and continuing in the context of a romantic relationship until at least November 2019;

d. Patient A resided with the Member while Patient A was participating in the Phase 3 outpatient program;

e. The Member attempted to conceal their relationship by changing Patient A’s name in the Member’s phone, and by refraining from being overly familiar when Patient A visited the Facility as part of the Phase 3 outpatient program;

f. The Member and Patient A signed a lease in November 2019, with a move-in date of December 14, 2019; and

g. The Member and Patient A began cohabitating together in December 2019.

If the Member were to testify, she would say that she asked a manager if she could have a friendship with Patient A and the manager advised her that she could, as long as she was not the patient’s prime nurse.

Unauthorized Disclosure of Personal Health Information of Patient B

Patient B was a patient in the Unit who was admitted for alcohol dependency disorder.
Patient A and Patient B had both been in the Unit for a period of time before June 2019 and had been friendly. By July 7, 2019, Patient A was an outpatient and had not been resident in the Unit for approximately one month.
On or about July 7, 2019, while Patient B was an inpatient in the Unit, Patient B sought support from the Member in respect of her recovery.
The Member told Patient B that Patient B should reach out to Patient A (using Patient A’s name), as Patient A was going through a similar experience.
The Member documented an interaction with Patient B on July 7, 2019. The Member documented that the Member had encouraged Patient B to reach out to a “sober peer” but did not identify Patient A in the notes.
Patient B did not follow the Member’s suggestion and did not contact Patient A.
Following the meeting between the Member and Patient B, the Member told Patient A about Patient B’s struggle with her recovery and asked Patient A to reach out to Patient B.
The Member did not have Patient B’s consent to disclose Patient B’s personal health information to Patient A.
Patient B received a text message shortly thereafter from Patient A. Patient A initiated the text exchange and Patient A possessed and conveyed to Patient B information about Patient B’s current circumstances, which Patient A had learned from the Member.

Use of Investigative Materials for Unauthorized Purpose

Pursuant to CNO’s disclosure obligation, the Member was provided with a copy of the record of investigation in these proceedings prior to February 8, 2021 to prepare a response to the ICRC. The record of investigation included Patient A’s health records.
The letter enclosing the material contained a warning that the materials collected in the investigation could only be used for the purposes of preparing a response.
On February 8, 2021, the Member contacted Patient A by e-mail to tell Patient A that the Member had received Patient A’s complete health records. The Member invited Patient A to contact her if Patient A wished to discuss the contents of Patient A’s health records with the Member.

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.

STANDARDS OF PRACTICE

CNO has published nursing standards that set out the expectations for the practice of nursing and inform nurses of their accountabilities.

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:

a. Nurses respect the dignity of patients and treat them as individuals;

b. Nurses work together to promote patient well-being;

c. Nurses maintain patients’ trust by providing safe and competent care;

d. Nurses work respectfully with colleagues to best meet patients’ needs;

e. Nurses act with integrity to maintain patients’ trust; and

f. 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:

a. Nurses protect the privacy and confidentiality of patients’ personal health information;

b. Nurses maintain professional boundaries with patients; and

c. Nurses do not engage in any sexual relationship with patients while caring for them. This law stays in effect for one year after the end of the nurse-patient relationship.

In addition, 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 their practice and conduct meets the legislative requirements and the standards 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:

a. Maintaining boundaries between professional therapeutic relationships and non-professional personal relationships;

b. Ensuring [patients’] needs remain the focus of nurse-[patient] relationships;

c. Ensuring his or her personal needs are met outside of the therapeutic nurse-[patient] relationships; and

d. 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 Standard

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:

a. Setting and maintaining the appropriate boundaries within the relationship, and helping [patients] understand when their requests are beyond the limits of the therapeutic relationship;

b. 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];

c. 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;

d. Abstaining from disclosing personal information, unless it meets an articulated therapeutic need of the [patient];

e. 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; and

f. documenting [patient]-specific information in the [patient’s] record regarding instances in which it was necessary to consult with a colleague/manager about an uncertain situation (non-[patient] related information, such as a letter of summary or incident report, should be documented on the appropriate confidential form).

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 provides 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, touching of a sexual nature or touching that may be perceived by the patient or others to be sexual as well as sexual intercourse or other forms of sexual contact with 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:

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).

Members are also expected to recognize the need for increased vigilance in maintaining appropriate boundaries in certain practice settings. Clear communication, such as continually clarifying one’s role in the relationship, helps clarify boundaries for patients who may become uncertain about the limits of their relationship with the member.
As a matter of the standards of practice regarding boundaries more generally, and although not expressly set out in the TNCR Standard, a “patient” is not necessarily limited to those individuals to whom a nurse is directly assigned, but also those individuals to whom a nurse is part of the circle of care. In addition, this may also include those individuals whom a nurse provides care and/or education to as part of a group.

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 sets out the ethical and legal responsibilities imposed on nurses to maintain the confidentiality and privacy of patient health information. It requires that personal health information be kept confidential and secure. Nurses comply with this standard by actions such as:

a. 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

b. obtaining the [patient’s] express consent before disclosing his/her information outside the health team (e.g., to family members or friends of the [patient]).

In addition, as referenced in the standard, one of the definitions of professional misconduct in the Nursing Act, 1991, is “giving information about a [patient] to a person other than the [patient] or his or her authorized representative, except with the consent of the [patient] or his or her representative, or as required or allowed by law.”

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member acknowledges that Patient A was her patient for the purposes of maintaining boundaries and the definition of sexual abuse. The Member acknowledges that as a facilitator of a group that Patient A attended, she was in a position of authority and power in her role as nurse and had a therapeutic relationship with Patient A.
The Member admits and acknowledges that she contravened CNO’s Code of Conduct, Professional Standards and TNCR Standard when she: engaged in physical sexual relations with and touching of a sexual nature of Patient A within one year of Patient A’s discharge from the Facility; engaged in behaviour and made remarks of a sexual nature toward Patient A while Patient A was a patient at the Facility and within one year of Patient A’s discharge from the Facility; and failed to appropriately establish and maintain the boundaries of the therapeutic nurse-patient relationship with Patient A by carrying on a personal relationship, romantic relationship and/or sexual relationship with Patient A while Patient A was a patient at the Facility and/or within one year of Patient A’s discharge from the Facility.
The Member admits and acknowledges that she contravened CNO’s Code of Conduct and Confidentiality and Privacy: Personal Health Information standard when she disclosed personal health information about Patient B to Patient A without consent.
The Member admits and acknowledges that she contravened CNO’s Professional Standards when after receiving Patient A’s personal health information from the CNO for the sole purpose of preparing a response to CNO’s investigation, she told Patient A that she received the information and offered to discuss it with her.
The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1(a) and (b) of the Notice of Hearing in that she sexually abused Patient A when she engaged in physical sexual relations with and touching of a sexual nature of Patient A within one year of Patient A’s discharge from the Facility and when she engaged in behaviour and made remarks of a sexual nature toward Patient A while Patient A was a patient at the Facility and within one year of Patient A’s discharge from the Facility, as described in paragraphs 12 to 19, 32 to 33, 46 to 49 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 2(a), (b), (c), (d) and (e) 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 12 to 31 and 34 to 52 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 3(a) of the Notice of Hearing in that she gave information about Patient B to Patient A without the consent of Patient B, as described in paragraphs 20 to 28, 51 to 52 and 55 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 4(a), (b), (c), (d) and (e) of the Notice of Hearing, and in particular her conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 12 to 52 above. The Member further admits and acknowledges that she knew or ought to have known her conduct was unacceptable, that her actions demonstrate a disregard for her professional obligations as well as brings shame to herself and the profession and casts doubt on her moral fitness and inherent ability to discharge the obligations expected of nurses.

Submissions on liability were made by College Counsel.

College Counsel submitted that the Member breached a number of the College’s standards and engaged in conduct that would reasonably be regarded by members of the profession to be dishonourable, disgraceful and unprofessional.

College Counsel submitted that allegations #1(a) and (b) involved sexual abuse where the Member engaged in sexual relations that included touching of a sexual nature and engaging in behaviour and making remarks of a sexual nature. The Member’s conduct, as set out in allegation #2 constitutes a breach of the College’s standards including, as set out at allegation #2(c), a failure to maintain appropriate boundaries.

College Counsel submitted that paragraphs 12-19 in the Agreed Statement of Facts sets out the non-therapeutic interactions of the Member and Patient [A]. Patient [A] was admitted to Homewood Health Centre (the “Facility”) between May and June 2019 and was a patient on the Addictions Unit (the “Unit”) where the Member was assigned. The Member had access to Patient [A]’s chart and the Member also ran the peer support group on the Unit which Patient [A] attended. Paragraph 16(a) in the Agreed Statement of Facts describes what Patient [A] would say if she were to testify about interactions between herself and the Member while she was an inpatient in the Unit. College Counsel submitted that paragraph 16(a) is not technically an agreed fact but rather represents information that Patient [A] would testify to if she were present. College Counsel submitted that paragraph 16(a) is not evidentiary, but is important for context.

College Counsel submitted that paragraphs 17 and 18 in the Agreed Statement of Facts are agreed facts and noted that between June 19, 2019 and September 11, 2019, Patient [A] was an outpatient of the Facility. It was during this time and immediately after discharge that the Member and Patient [A] began interactions and quickly moved to a non-therapeutic sexual relationship. The Agreed Statement of Facts also gives examples of romantic relations including living together and signing a lease. In the Agreed Statement of Facts, the Member also admitted to engaging in physical relations, as well as making remarks and engaging in behaviour of a sexual nature. This conduct happened within one year of Patient [A]’s discharge from the Facility. College Counsel submitted that it is the period of time post discharge where there is clear evidence of a sexual relationship and support for the allegation of sexual abuse and a breach of the College’s standards.

College Counsel submitted that allegations #2(a), (b) and (c) contain the same factual scenario, including failure to maintain appropriate boundaries. The Agreed Statement of Facts includes the College’s standard that makes it clear that engaging in sexual relations with a patient within one year of discharge is a breach of the therapeutic boundaries expected of nurses. The Member admitted that Patient [A] was a patient and the evidence shows that Patient [A] was a patient in the Unit, where the Member had access to her chart and where she facilitated programming as part of the therapy.

College Counsel submitted that allegation #3(a) is supported by paragraphs 20-28 in the Agreed Statement of Facts. The Member shared information about Patient [B] to Patient [A] while the Member was in a relationship with Patient [A] and after Patient [A] had been discharged from the Facility. College Counsel submitted that the Member did not have consent to share Patient [B]’s information and her conduct was a breach of the College’s Confidentiality and Privacy: Personal Health Information Standard.

College Counsel submitted that allegations #4(a), (b), (c), (d) and (e) are supported by admissions from the Member that her conduct was disgraceful, dishonourable and unprofessional. The Member knew that her conduct was unacceptable and showed a persistent disregard for her professional obligations and an inability to discharge the higher obligations of a professional nurse. The Member also inappropriately offered to share with Patient [A] confidential material provided to her for the purposes of preparing a response to the College’s investigation as set out in paragraphs 29-31 in the Agreed Statement of Facts. This was also a breach of the College’s standards and would be regarded by members of the profession to be disgraceful, dishonourable and unprofessional. College Counsel submitted that the Member’s conduct showed a moral failing that shamed herself and the profession.

Submissions on liability were made by the Member.

The Member submitted background information regarding her entry into nursing. The Member initially studied to be a teacher and was encouraged to go into nursing. It was not her first choice, but she was prompted to enroll in nursing. The Member submitted that she did not want to live her life with restrictions and talked to her nursing teachers about struggling with boundaries. A teacher who taught ethics told the Member that professional boundaries would be expected. The Member submitted that she won an award in nursing school for excellence in patient care and that she was seen as an innovative thinker with regards to patient centered care.

The Member submitted that she had a student placement at the Facility and was offered a position as a new graduate nurse. After six months the Member was hired to a new assessment and stabilization unit specializing in the treatment of patients with schizophrenia. Around this time, the Member reported that she became mentally unwell. In 2018 she lost her house, lost her partner through divorce and lost friends. The Member submitted that she was unfit to work at this time, experiencing brain fog, inability to eat or sleep and also felt traumatized. Despite feeling unwell and because her insurance was ending, the Member submitted that she was forced to return to work. A month before meeting Patient [A], the Member submitted that she attempted suicide. A co-worker came to her door to check on her and called the police to do a wellness check and bring her to the hospital. The Member submitted that her privacy was breached as she did not tell colleagues that she was unwell. The Member submitted that she could not bear the thought of colleagues gossiping about her at work and what she was going through.

The Member submitted that it was during this time of being unwell that she met Patient [A] when Patient [A] approached her about a LGBTQ group meeting at the Facility. The Member submitted that she also met Patient [A] as part of LGBTQ events in the small community where she and Patient [A] lived. The Member submitted that because she knew she was unwell, she approached her supervisor to get advice about how to manage a relationship with someone within the LGBTQ community who was also a patient. The Member submitted that she was advised that if she stayed out of the circle of care, she would be ‘ok’.

The Member submitted that she was a good nurse in the years before she became unwell and continued to do crisis work during the pandemic. The Member submitted that she hoped there could be a change in the profession that creates a safe place where members who are unwell and have an attraction can be advised how to stay safe. The Member advocated for open conversations to help keep members of the profession safe. The Member expressed remorse for ending her career in this way and asked the Panel to consider the context of the events. The Member submitted that she valued nurses and all those who have taught her along the way.

College Counsel responded to the Member’s submissions on liability.

College Counsel submitted that the facts for consideration are contained within the Agreed Statement of Facts and that the Member’s comments can be helpful for context. College Counsel submitted that the Member’s attendance, her cooperation and clear sadness are relevant factors for the penalty stage of the hearing. College Counsel submitted that there is a stigma about what to do when there is an attraction or interactions between a member and a patient. The Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) requires that a member discuss this with a supervisor. There are also clear steps to document situations of this nature while also maintaining and being clear with the patient about the professional boundary. There is also clear direction that members cannot have relations with patients regardless of the size of the community.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities based upon clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs #1(a), (b), #2(a), (b), (c), (d), (e), #3(a), #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 unprofessional, dishonourable and disgraceful.

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 12-19, 32-33, 46-49, 53 and 57 in the Agreed Statement of Facts. The Member was not Patient [A]’s primary nurse while Patient [A] was at the Facility between May 12, 2019 and June 13, 2019. The Member did, however, have a therapeutic relationship with Patient [A] since the Member facilitated peer support group meetings that Patient [A] attended. Patient [A] was discharged from the Facility, becoming an outpatient in Phase 3 of the treatment plan between June 19, 2019 and September 11, 2019. Immediately after Patient [A]’s discharge in June 2019, and while Patient [A] was still a Phase 3 outpatient, the Member and Patient [A] engaged in a non-therapeutic relationship, including a sexual relationship that included oral sex, genital to genital contact and sexual intercourse. The Health Professions Procedural Code defines sexual abuse of a patient by a member as when the member engages in sexual relations with the patient and does so within one year in which the individual ceased to be the member’s patient. By engaging in a sexual relationship with Patient [A] immediately after Patient [A]’s discharge the Member clearly breached the Health Professions Procedural Code and her actions constituted sexual abuse of a patient and are thus an act of professional misconduct.

Allegations #2(a), (b), (c), (d) and (e) in the Notice of Hearing are supported by paragraphs 12-31, 34-56 and 58 in the Agreed Statement of Facts. The Member’s conduct breached a number of the College’s standards as follows:

The Member breached the College’s Code of Conduct when she did not act with integrity to maintain Patient [A]’s trust and breached the therapeutic relationship and therapeutic boundary with Patient [A]. The Member engaged in a sexual relationship with Patient [A] immediately after Patient [A]’s discharge which was within a year of the nurse-patient relationship. The Member also did not protect Patient [B]’s privacy when she revealed to Patient [A] that Patient [B] was struggling with their recovery. Failing to act with integrity, engaging in sexual relations with a patient within a year of the nurse-patient relationship and violating a patient’s privacy are all breaches of the Code of Conduct.

The College’s Professional Standards provide that nurses are responsible for ensuring that their practice and conduct meets legislative requirements and the standards of the profession. The Member violated the Code of Conduct as well as the Health Professions Procedural Code by having a sexual relationship with Patient [A]. By breaching the nurse-patient relationship and entering into a sexual relationship with Patient [A] the Member did not act with integrity. Her needs took priority over the needs of Patient [A] and she took advantage of Patient [A] while Patient [A] was still being treated as an outpatient. By sexually abusing Patient [A], sharing Patient [B]’s personal health information with Patient [A] and also offering to discuss confidential College documents with Patient [A], the Member did not role model professional values, beliefs and attributes and in so doing, breached the College’s Professional Standards.

The College’s TNCR Standard provides that the nurse-patient relationship is built on trust and respect and requires the appropriate use of power. As a professional, the Member was in a position of power over Patient [A] who was ill, vulnerable and seeking treatment for alcohol use disorder, stimulant (cocaine) use disorder and tobacco use disorder. The Member was responsible for establishing and maintaining the therapeutic nurse-patient boundary and she failed in this regard by engaging in a romantic relationship with Patient [A] while Patient [A] was still seeking treatment for her illness. The Member allowed her needs to take priority over the needs of Patient [A]. By consulting with her Manager, the Member indicated that she knew a friendship with Patient [A] could breach the Professional Standards, but the Member did nothing to stop the friendship from developing into a romantic relationship. The Member should have also had enough experience working at the Facility to understand that the patients she worked with were particularly vulnerable and that she should have applied additional vigilance to maintain an appropriate boundary with Patient [A]. The Member’s conduct toward Patient [A] breached the College’s TNCR Standard.

The Member breached the Confidentiality and Privacy: Personal Health Information Standard when she shared information about Patient [B] with Patient [A] without the consent of Patient [B] and when she offered to discuss confidential College documents with Patient [A].

As indicated above, the Member’s conduct breached a number of the College’s standards between May 2019 and March 2020. The Panel was satisfied that there was sufficient evidence to prove the allegations that the Member had breached standards of the profession.

Allegation #3(a) in the Notice of Hearing is supported by paragraphs 20-28, 51-52, 55 and 59 in the Agreed Statement of Facts. Patient [A] and Patient [B] met while both were patients at the Facility. Patient [A] was discharged, but Patient [B] remained a patient at the Facility. On or about July 7, 2019, the Member told Patient [A] about Patient [B]’s ongoing struggle with recovery and asked Patient [A] to reach out to Patient [B]. The Member did not have Patient [B]’s consent to share personal health information with Patient [A]. By sharing Patient [B]’s information without consent the Member committed professional misconduct as defined in subsection 1(10) of Ontario Regulation 799/93.

Allegations #4(a), (b), (c), (d) and (e) in the Notice of Hearing are supported by paragraphs 12-52 and 60 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in showing poor judgment and a lack of responsibility toward her professional obligations when she began a relationship with Patient [A] immediately following Patient [A]’s discharge from the Facility was relevant to the practice of nursing. The Member’s conduct was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations as set out in the Code of Conduct, the Professional Standards, the TNCR Standard, and the Confidentiality and Privacy Standard.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of moral failing through engaging in an inappropriate relationship with Patient [A]. The Panel appreciates that the Member asked a supervisor for advice regarding her attraction to Patient [A], but the Member ought to have known that beginning a relationship with a patient was inappropriate, that it violated the therapeutic boundary in the nurse-patient relationship and that it fell below the standards expected of a nurse. The Member’s offer to discuss confidential College documents with Patient [A] also demonstrated dishonesty, deceit and a lack of integrity. The Member also knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional.

Finally, the Panel finds that the Member’s conduct was also disgraceful. By engaging in a sexual relationship with Patient [A], the Member abused the power inherent in the nurse-patient relationship; a relationship that is based on trust that a nurse will only intervene in a therapeutic way with a patient and not to meet personal needs. By her own admission, the Member had difficulty with the restrictions required of a professional to maintain professional boundaries. Her complete disregard for her professional obligations by entering into a sexual relationship with a vulnerable patient shamed herself and the profession. The Member’s conduct to engage in a sexual relationship with Patient [A] and abuse the nurse-patient relationship casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

Penalty

College Counsel and the Member 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 [Patient A] under the program required by s. 85.7 of the Health Professions Procedural Code, up to the amount of $5,000, if [Patient A] 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 extreme seriousness of the Member’s conduct;
The Member violated core values of the nursing profession which are to act in the patient’s interest and not in the nurse's self-interest;
Patient [A] was diagnosed with substance abuse and was in treatment;
Patient [A] was vulnerable due to her illness; and
The onus was on the Member to maintain professional boundaries with Patient [A]. The Member did not do this.

The mitigating factors in this case were:

The Member cooperated with the College by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College; and
The Member expressed remorse and accountability for her conduct.

College Counsel submitted that Section 51(5) of the Health Professions Procedural Code specifically requires mandatory revocation of the Member’s registration for sexual abuse that includes sexual intercourse and oral to genital contact. The Panel has the discretion to make an order as set in Section 51 (2) of the Health Professions Procedural Code requiring the Member to reimburse the College for funding provided for Patient [A] for therapy and counselling related to the sexual abuse. College Counsel submitted that the Member should bear some of the responsibility for the counselling program but will only pay the reimbursement to the College if Patient [A] accesses the fund.

The proposed penalty provides for general deterrence through the revocation of the Member’s certificate of registration, which sends a strong message to the profession that sexual abuse will not be tolerated by the College. College Counsel submitted that if the public is to continue to be confident in the profession, nurses must maintain and be seen to maintain appropriate boundaries. The proposed penalty provides for specific deterrence through the oral reprimand and the revocation of the Member’s certificate of registration, which sends a strong message to the Member that sexual abuse will not be tolerated.

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): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member was represented by counsel. The member was found to have had sexual relations with two patients. The Member admitted to the conduct including sexual abuse of two patients, breaching the College’s standards and that her conduct was unprofessional, dishonourable and disgraceful. The penalty included an oral reprimand, revocation of the member’s certificate of registration and an order to reimburse the College for funding up to $10,000.00 for counselling. The higher amount for counselling was because two patients were involved.

CNO v. Dulmage (Discipline Committee, 2021): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member was represented by counsel. The member was found to have sexually abused a patient. The penalty included an oral reprimand and revocation of the member’s certificate of registration. The penalty did not include an order for reimbursement of funding for counselling services as the patient had died.

The Member made no submissions on penalty.

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 [Patient A] under the program required by s. 85.7 of the Health Professions Procedural Code, up to the amount of $5,000, if [Patient A] 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. Specific deterrence is met through the oral reprimand and revocation of the Member’s certificate of registration, which sends a message to the Member that this type of behaviour is unacceptable. Furthermore, revocation of the Member’s certificate means that the Member will not be able to engage in this conduct again in the context of the nursing profession. Revocation is the ultimate form of specific deterrence.

General deterrence is met through the revocation of the Member’s certificate of registration, which sends a message to members of the profession that this type of behaviour will not be tolerated and will have serious and absolute consequences.

As the Member’s certificate of registration will be revoked, the penalty need not address rehabilitation and remediation.

Public protection is met through the Member’s mandatory revocation which will prevent future conduct and demonstrate the ability of the College to self-regulate. The Panel recognizes the seriousness of this case and understands the legislative requirements to revoke the Member’s registration for conduct involving sexual abuse. The Panel also supports accountability of the Member to financially support counselling for Patient [A] if she chooses to access the College fund for this purpose.

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

I, Michael Hogard, 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.