DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Mary MacNeil, RN Chairperson Grace Fox, NP Member Carly Hourigan Public Member Matthew Secord, RN Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) ALYSHA SHORE for ) College of Nurses of Ontario
- and - )
THOMAS O’HANDLEY ) CHRIS BRYDEN for Registration No. 18043298 ) Thomas O’Handley
) PATRICIA HARPER ) Independent Legal Counsel
) Heard: June 13, 2023
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 June 13, 2023, 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 publication or broadcasting of the name of the patient, or any information that could disclose the identity of the patient referred to orally or in any documents presented in the Discipline hearing of Thomas O’Handley.
The Panel considered the submissions of College Counsel and Member’s Counsel and decided that there be an order preventing public disclosure and banning publication or broadcasting of the name of the patient, or any information that could disclose the identity of the patient referred to orally or in any documents presented in the Discipline hearing of Thomas O’Handley.
The Allegations
The allegations against Thomas O’Handley (the “Member”) as stated in the Notice of Hearing dated March 30, 2023 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 Nurse and employed at Hamilton General Hospital in Hamilton, Ontario (the “Facility”) you sexually abused a patient, in that, in or about October 2019 you engaged in behaviour and/or made remarks of a sexual nature toward Patient [ ], while he was admitted to the Facility and/or after his discharge, in writing and/or orally, including but not limited to:
a. “I lick ass for fun…a fart ain’t gonna bother me”;
b. “Home tonight buddy, gonna get my hairy ass to the gym”;
c. text messages insinuating that you thought Patient [ ] was “cute”;
d. “I could watch you wash your balls all day” or words to that effect; and/or
e. “I want to suck your cock so bad right now” or words to that effect;
- You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that, while registered as a Registered Nurse and employed at Hamilton General Hospital in Hamilton, 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, in or about October 2019 and/or November 2019:
a. you failed to maintain the boundaries of the professional and therapeutic nurse-patient relationship with Patient [ ], while he was admitted to the Facility and/or after his discharge, including but not limited to when you:
(i) provided your personal cell phone number to Patient [ ];
(ii) exchanged numerous text messages with Patient [ ];
(iii) spoke by telephone with Patient [ ];
(iv) visited Patient [ ] at his home following his discharge;
(v) assisted Patient [ ] with a shower at his home and stayed in the bathroom while he showered; and/or
(vi) shared personal information with Patient [ ] about your marriage; and/or
b. you engaged in behaviour and/or made remarks of a sexual nature toward Patient [ ], while he was admitted to the Facility and/or after his discharge, in writing and/or orally, including but not limited to:
(i) “I lick ass for fun…a fart ain’t gonna bother me”;
(ii) “Home tonight buddy, gonna get my hairy ass to the gym”
(iii) text message insinuating that you thought Patient [ ] was “cute”;
(iv) “I could watch you wash your balls all day” or words to that effect; and/or
(v) “I want to suck your cock so bad right now” or words to that effect; 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 Nurse and employed at Hamilton General Hospital in Hamilton, Ontario (the “Facility”), you engaged in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, in that, in or about October 2019 and/or November 2019:
a. you failed to maintain the boundaries of the professional and therapeutic nurse-patient relationship with Patient [ ], while he was admitted to Facility and/or after his discharge, including but not limited to when you:
(i) provided your personal cell phone number to Patient [ ];
(ii) exchanged numerous text messages with Patient [ ];
(iii) spoke by telephone with Patient [ ];
(iv) visited Patient [ ] at his home following his discharge;
(v) assisted Patient [ ] with a shower at his home and stayed in the bathroom while he showered; and/or
(vi) shared personal information with Patient [ ] about your marriage; and/or
b. you engaged in behaviour and/or made remarks of a sexual nature toward Patient [ ], while he was admitted to the Facility and/or after his discharge, in writing and/or orally, including but not limited to:
(i) “I lick ass for fun…a fart ain’t gonna bother me”;
(ii) “Home tonight buddy, gonna get my hairy ass to the gym”;
(iii) text message insinuating that you thought Patient [ ] was “cute”;
(iv) “I could watch you wash your balls all day” or words to that effect; and/or
(v) “I want to suck your cock so bad right now” or words to that effect.
Member’s Plea
The Member admitted the allegations set out in paragraphs 1(a),(b), (c), (d), (e), 2(a)(i), (ii), (iii), (iv), (v), (vi), (b)(i), (ii), (iii), (iv), (v) and 3(a)(i), (ii), (iii), (iv), (v), (vi), (b)(i), (ii), (iii), (iv) and (v) in the Notice of Hearing. The Panel received a written plea inquiry which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.
Agreed Statement of Facts
College Counsel and the Member’s Counsel advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which as amended reads, unedited, as follows:
THE MEMBER
Thomas O’Handley (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on May 17, 2018.
The Member was working as a full-time RN in the Trauma and Surgery Unit (the “Unit”) at Hamilton General Hospital in Hamilton, Ontario (the “Facility”) from May 17, 2018 until his employment was terminated for cause on December 16, 2019 in relation to the incidents described below.
The Member currently works as a full-time RN at UND Healthcare Services, an agency that assists employers with meeting temporary or permanent staffing needs in private home care, hospital, and long-term care settings.
The Member also is currently employed as a casual RN at Halton Healthcare Services – Milton District Hospital in Milton, Ontario.
The Member has no prior CNO disciplinary history.
THE FACILITY AND THE PATIENT
[The Patient] was a [ ]-year-old patient admitted to the Unit on October 12, 2019. He was admitted for a significant leg wound.
The Patient was discharged on October 23, 2019.
Upon discharge from the Unit, the Facility arranged for the Patient to receive homecare from a nursing agency.
The Member was one of the Patient’s assigned nurses on the Unit at the Facility on October 15, 16 and 17, 2019.
The patient to nurse ratio on the Unit was 1:4.
The Member was never assigned to the Patient’s care post-discharge from the Unit.
INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT
Inappropriate Behaviour Toward the Patient
At some point between October 15 and October 17, 2019, the Member and the Patient exchanged phone numbers.
The Patient was upset with the perceived level of care he was receiving on the Unit.
The Patient first voiced his complaints to the Member as the Member made his rounds, and gradually transitioned to expressing his concerns to the Member through text messages sent to the Member’s personal mobile device.
The Member and the Patient began exchanging text messages, starting around 1342 hrs on October 18, 2019. The message content ranged from the Patient’s treatment to social topics.
The Patient sent the Member text messages in which the Patient indicated that he was extremely reliant and dependent on the Member, which the Member acknowledged repeatedly.
The Patient texted the Member on October 18, 2019 at 2306 hrs, asking the Member to call him to “chat about the day”. The Member replied, “Okay! Remember I have to be careful… and sorry in advance for that reminder ‘cuz I know you’re cool. Professionalism and all that :-( “.
If the Member were to testify, he would state that he wanted to be part of the solution to the Patient’s care needs as he viewed the Patient becoming socially isolated on the Unit. Regardless, the Member understands how his involvement with the Patient crossed the boundary of what is acceptable, appropriate nursing care. He acknowledges that he made an error in judgement when he started communicating with the Patient outside the therapeutic nurse-patient relationship.
The Member called the Patient on October 18, 2019.
The Patient told the Member that he did not have a support network outside the Unit and that he worried about who would look after him once discharged.
On October 20, 2019, the Member texted the Patient, “I have a lot of love in my heart…you’re gong (sic) to have all the support I can give you when you get discharged”.
Later that day, the Member assessed the Patient on the Unit.
As a side effect of some medication, the Patient passed gas while receiving care from the Member and expressed his embarrassment to the Member.
Shortly after the Member left the room, the Member texted the Patient: “I lick ass for fun…a fart ain’t gonna bother me”.
Later that day, the Member shared a photo of his dog with the Patient.
In response, the Patient sent multiple photos of his dog to the Member.
The Member replied, “Goodness gracious he’s so damn cute - Reminds me of someone…”, insinuating that the Member thought the Patient was also “cute”.
On October 21, 2019, the Patient texted the Member, asking where he was and what he was doing. The Member texted back, “Home tonight buddy, gonna actually get my hairy ass to the gym”.
The Patient was discharged from the Facility on October 23, 2019.
The Member told the Patient that he would come to his home later that day to check on him. The Patient agreed.
The Member attended the Patient’s home in his personal capacity and for no formal or approved clinical purpose on October 23, 2019.
The Member cleaned the Patient’s fridge, bought dinner for the Patient, tidied up the living space so there were no tripping hazards, and offered to spend some time with the Patient until he felt settled.
If the Member were to testify, he would state that his intention in attending the Patient’s home was to ensure the Patient had all necessary items within arm’s reach because the Patient could not walk on his own. The Member also brought food for the Patient since he was under the impression from what the Patient shared on the Unit that he would not have a support network to care for him post-discharge.
An RPN from a post-surgical care agency arranged through the Facility attended the Patient’s home on October 23, 2019, to initiate IV antibiotics, explain negative pressure wound therapy, setup the vacuum-assisted wound closure machine (“wound VAC”) and complete agency paperwork. The RPN was at the Patient’s home when the Member arrived.
The RPN asked the Patient how he knew the Member.
The Member was standing behind the RPN at the time. If the Patient were to testify, he would say that the Member signalled to the Patient not to tell the RPN how they knew one another by placing a finger over his lips gesturing for the Patient to “be quiet”. If the Member were to testify, he would deny this.
The Patient introduced the Member to the RPN as his “friend”, who also happened to work at the Facility.
If the Patient were to testify, he would state that he felt compelled to lie for the Member but did not appreciate why this was necessary. The Patient did not advise the Member that he felt this way.
The RPN left shortly thereafter. The Member remained in the Patient’s home.
The Patient asked the Member if he would help him shower because he was unsure how to properly clean himself with the wound VAC and the IV in place. The Member agreed, and prepared garbage bags, medical tape and supplies to keep the wound and injection sites clean and dry.
The Member stayed in the bathroom and held back the shower curtain so the curtain would not drip on the Patient’s left leg while the Patient cleaned himself.
As the Member stood behind the Patient to rinse off his back with the showerhead, the Member told the Patient, “I could watch you wash your balls all day” or words to that effect.
If the Patient were to testify, he would state that he pretended not to hear the Member and did not reply because he was shocked and felt extremely vulnerable as he was nude in the shower, dependant on the Member’s assistance to not compromise the wound VAC and IV.
The Patient continued showering with the Member’s assistance.
The Member turned off the water and helped the Patient get dressed.
Around this time, the Member told the Patient, “I want to suck your cock so bad right now” or words to that effect.
If the Patient were to testify, he would testify that he started to tremble. If the Member were to testify, he would state that he does not recall the Patient trembling.
If the Patient were to testify, he would state that the Patient told the Member that he was uninterested in a relationship with the Member and that he was not gay. If the Member were to testify, he would deny this exchange.
If the Patient were to testify, he would state that the Member responded, “Oh, I was only joking. That’s alright man, I’m only joking”. If the Member were to testify, he would deny this exchange.
Following the shower, the Patient and the Member exited the bathroom and sat beside one another on a couch in the Patient’s living room.
If the Patient were to testify, he would testify that he avoided making eye contact with the Member.
If the Patient were to testify, he would further state that he felt unsafe when the Member joined him on the couch because there was room to sit elsewhere, but the Member chose to “nestle” against him instead of sitting an appropriate distance away. If the Member were to testify, he would deny this.
The Member told the Patient that he was having challenges in his home life, including with respect to his marriage.
The Patient told the Member that he was not feeling well, and fell asleep sometime between 2200 and 2330 hrs.
If the Patient were to testify, he would state that when woke up the Member was still beside him on the couch. The Member would testify that he was unaware that the Patient fell asleep.
The Member asked if the Patient needed any assistance before he left. The Patient said no.
The Member left the Patient’s home, returning briefly to ask for a flashlight to find personal belongings he had dropped while getting into his car.
If the Patient were to testify, he would state that he was shaken by the totality of the interactions with the Member and stayed awake the rest of the night watching his home’s garage security camera fearing the Member would return. The Patient would state that he felt incredibly vulnerable, particularly given the Member’s explicit comments about sexually desiring the Patient. The Patient would further testify that he was paranoid that the Member would return to his home and enter unannounced since the Member knew the Patient was unable to get up and lock the door behind him.
The Patient stopped all communications with the Member on October 28, 2019.
CNO STANDARDS OF PRACTICE
- CNO has published nursing standards to set out the expectations for the practice of nursing. CNO’s published standards inform nurses of their accountabilities and apply to all nurses regardless of their role, job description or area of practice.
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 consists of six principles:
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.
CNO’s Code of Conduct states that nurses communicate with colleagues to improve patient care experiences. Nurses are trusted to advocate for improving the quality of their practice setting to support safe patient care. Relatedly, nurses work together to stop unethical practice, including any type of abuse. In fact, nurses are specifically tasked in the Code of Conduct with taking prompt action to prevent and protect patients from harm.
If nurses are concerned about the care a patient is receiving, the Code of Conduct promotes collaboration to develop a responsive care plan that reflects the patient’s needs going forward, if a plan is not already in place. Nurses do not take it upon themselves to care for patients if doing so breaches ethical and professional boundaries.
To this end, nurses must also never exploit perceived or realized gaps in patient care to promote their own personal needs and engage in breaches of the therapeutic nurse-patient boundary, including but not limited to seeking personal and/or sexual relationships.
Professional Standards
CNO’s Professional Standards provides that each nurse is responsible for ensuring that their conduct meets the standards of the profession.
Nurses are expected to take responsibility for their actions and the consequences of those actions. Nurses are also accountable for conducting themselves in ways that promote respect for the profession as a whole and reinforce public confidence in the integrity and respectability of its members.
This practice standard indicates that a nurse demonstrates these expectations by, among other actions:
a. ensuring practice is consistent with CNO’s standards of practice and guidelines as well as legislation; and,
b. maintaining boundaries between professional therapeutic relationships and non-professional personal relationships.
Therapeutic Nurse-Client Relationship Standard
CNO’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) provides guidance on establishing and maintaining appropriate nurse-patient boundaries.
The TNCR Standard specifies that therapeutic nursing services “contribute to the [patient’s] health and well-being” and that meaningful relationships are built on a foundation of “trust, respect, empathy and professional intimacy” that requires an acknowledgement of the “appropriate use of power inherent in the care provider’s role.”
While the TNCR Standard notes that establishing positive and empathic therapeutic relationships with patients is at the core of the practice of nursing, the TNCR Standard explains that setting appropriate boundaries with patients is an important aspect of a care provider’s role.
More specifically, the TNCR Standard elaborates that nurses meet the standard for patient-centred care by working with patients to ensure that all professional behaviour and actions meet the therapeutic needs of the patient. Nurses meet the standard by, among other actions:
a. setting and maintaining appropriate boundaries within the relationship;
b. being aware of his/her verbal and non-verbal communication style and how [patients] might perceive it; and,
c. committing to being available to the [patient] for the duration of care within the employment boundaries and role context.
- Patients deserve access to health care free from the risk of exploitation and mental, emotional and/or physical harm. There is no place for patient abuse in any practice setting, under any circumstance.
ADMISSIONS OF PROFESSIONAL MISCONDUCT
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 1-3 of the Notice of Hearing, as described in paragraphs 12-59 above.
The Member admits that he sexually abused Patient [ ] in or about October 2019 when he engaged in behaviour and made remarks of sexual nature toward the Patient in writing and orally while the Patient was admitted to hospital and following discharge, as alleged in paragraph 1(a)-(e) in the Notice of Hearing and as described in paragraphs 12-59 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 2(a)(i)-)(vi) and 2(b)(i)-(v) of the Notice of Hearing and that he contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, as described in paragraphs 12-72 above.
In particular, the Member admits that communicating with the Patient through personal text messages and calls, visiting the Patient’s residence post-discharge from hospital, assisting and subsequently staying in the bathroom while Patient [ ] showered, and sharing personal information with the Patient contravened CNO’s Code of Conduct, Professional Standards, Therapeutic Nurse-Client Relationship standards of practice.
If the Member were to testify, he would state that his communications with the Patient, specifically “I lick ass for fun … a fart ain’t gonna bother me”, “Home tonight buddy, gonna get my hairy ass to the gym” and insinuating that he thought the Patient was “cute”, were attempts to be humorous or make the Patient feel prioritized given the Patient’s experiences in hospital. However, the Member admits and acknowledges that, regardless of his intent, his vulgar, sexualized comments to the Patient contravened CNO’s Code of Conduct, Professional Standards, Therapeutic Nurse-Client Relationship standards of practice.
The Member admits that his communications to the Patient, including “I could watch you wash your balls all day” and “I want to suck your cock so bad right now” contravened CNO’s Code of Conduct, Professional Standards, Therapeutic Nurse-Client Relationship standards of practice.
The Member admits that he 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 and unprofessional, as alleged in paragraphs 3(a)(i)-(vi) and 3(b)(i)-(v) in the Notice of Hearing and as described in paragraphs 12-72 above.
Submissions on liability were made by College Counsel.
College Counsel asked the Panel to accept the Agreed Statement of Facts, as well as the Member’s admissions to all the allegations as set out in paragraphs 73-79 of the Agreed Statement of Facts and, on the basis of those facts and admissions, make findings of professional misconduct with respect to the allegations in the Notice of Hearing. College Counsel submitted that the Panel has taken the Member’s plea and conducted a written and verbal plea inquiry, which was voluntary, informed, and made on the advice of experienced Counsel. College Counsel submitted that based on the Agreed Statement of Facts, which specifically describes the facts in relation to the allegations, the Panel has enough evidence to find that the Member committed professional misconduct as set out in all of the allegations in the Notice of Hearing.
With regard to allegations #1(a), (b), (c), (d) and (e), College Counsel submitted that the Member’s actions constituted sexual abuse through both his verbal and text communications with Patient [ ].
With regard to allegations #2(a)(i), (ii), (iii), (iv), (v), (vi) and (b)(i), (ii), (iii), (iv) and (v), College Counsel submitted that the Member failed to meet the College’s Professional Standards, the Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) and the Code of Conduct. The Member admitted that these standards were breached when he failed to maintain professional boundaries by visiting Patient [ ]’s residence with no clinical purpose and by communicating with Patient [ ] through personal text messages and calls post-discharge from hospital.
With regard to allegations #3(a)(i), (ii), (iii), (iv), (v), (vi) and (b)(i), (ii), (iii), (iv) and (v), College Counsel submitted that the Member’s conduct was relevant to the practice of nursing as the Member met Patient [ ] at the Hamilton General Hospital (the “Facility”) while providing care to him and the Member’s conduct continued following Patient [ ]’s discharge. College Counsel submitted that members of the profession would find the Member’s conduct to be dishonourable, disgraceful and unprofessional. The Member showed a serious disregard for his professional responsibilities in the repeated nature of the conduct. The Member’s conduct was dishonest as he knew or ought to have known that his conduct was inappropriate and showed an element of moral failing in the repeated sexual nature of his conduct. The Member’s conduct was also disgraceful as sexual abuse shames the Member and the profession.
College Counsel submitted the following cases to the Panel:
CNO v. De Cesare (Discipline Committee, 2021): This case proceeded by way of an Agreed Statement of Facts. The member failed to maintain the boundaries of the therapeutic nurse-client relationship as she engaged in a personal relationship with a patient when she communicated by text message, telephone and met with and socialized with the patient in person outside of the therapeutic relationship. The member also accepted gifts of money, food and alcohol from the patient and disclosed her personal life to the patient. The panel found that the member breached the College’s Professional Standards, the TNCR Standard and the Code of Conduct and found the member’s conduct to be disgraceful, dishonourable and unprofessional. The member’s conduct brought shame upon the member and showed an element of moral failing.
CNO v. Hohban (Discipline Committee, 2020): This case proceeded by way of an Agreed Statement of Facts. The member failed to maintain the boundaries of the therapeutic nurse-client relationship when she made sexual remarks to a patient and engaged in touching of a sexual nature with the patient. The member and the patient kissed while on a trip to Montreal. The panel found that the member breached the Professional Standards and the TNCR Standard and found the member’s conduct to be disgraceful, dishonourable and unprofessional.
CNO v. O’Connell (Discipline Committee, 2019): This case proceeded by way of an Agreed Statement of Facts. College Counsel submitted that this case was a breach of the therapeutic nurse-client relationship. The member met the patient when she was assigned as the Outreach Nurse to care for the patient who had a substance abuse disorder. The member and the patient exchanged over 1100 text messages and spoke on the phone for over 25 hours. The member repeatedly texted the patient that she “missed him” and that he “had a place in her heart”. The member failed to document when the frequency of the text messages and the nature of the relationship became problematic. In this case, there was no sexual abuse allegation and the member was found to have breached the TNCR Standard and the Documentation Standard. The panel found the Member’s conduct to be disgraceful, dishonourable and unprofessional.
Submissions on liability were made by the Member’s Counsel.
The Member’s Counsel agreed with College Counsel’s submissions, asked that the Panel accept the Member’s admissions, and noted that the Member was remorseful.
Decision
The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities based upon clear, cogent and convincing evidence.
Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), (b), (c), (d), (e), 2(a)(i), (ii), (iii), (iv), (v), (vi), (b)(i), (ii), (iii), (iv), (v), 3(a)(i), (ii), (iii), (iv), (v), (vi) and (b)(i), (ii), (iii), (iv) and (v) of the Notice of Hearing. As to allegations # 3(a)(i), (ii), (iii), (iv), (v), (vi) and (b)(i), (ii), (iii), (iv) and (v), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonourable, disgraceful and unprofessional.
Reasons for Decision
The Panel considered the Agreed Statement of Facts and the Member’s plea and finds that this evidence supports findings of professional misconduct as alleged in the Notice of Hearing.
Allegations #1(a), (b), (c), (d) and (e) in the Notice of Hearing are supported by paragraphs 12-59, 73 and 74 in the Agreed Statement of Facts. The Member admitted that while employed as a Registered Nurse (“RN”) at the Facility, he sexually abused Patient [ ] in or about October 2019 when he communicated with Patient [ ] outside of the therapeutic nurse-patient relationship and made remarks of a sexual nature to Patient [ ] by text and verbally, which made Patient [ ] feel unsafe. The Member’s remarks of a sexual nature, both verbal and by text message, constitute sexual abuse.
Allegations #2(a)(i), (ii), (iii), (iv), (v) and (vi) in the Notice of Hearing are supported by paragraphs 12–73 and 75-78 in the Agreed Statement of Facts. The Member admitted that he contravened the standards of practice of the nursing profession when he communicated with Patient [ ] through personal text messages and calls, visited Patient [ ]’s residence post-discharge from the Facility, stayed in the bathroom and assisted Patient [ ] while he showered and shared personal information with Patient [ ].
The Member failed to maintain the boundaries of the College’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) when he engaged in a personal relationship with Patient [ ] while [the Patient] was a patient at the Facility and after he was discharged from the Facility. The Member visited Patient [ ] at his home in the Member’s personal capacity and for no formal or approved clinical purpose. Patient [ ] had home care support and the Member acted inappropriately in assisting him with his shower. The Member failed to maintain boundaries when he exchanged intimate texts, phone calls and personal information about his marriage with Patient [ ].
The Member contravened the College’s Code of Conduct during and after Patient [ ]’s stay at the Facility. The Member did not act with integrity to maintain Patient [ ]’s trust as his actions made Patient [ ] feel unsafe. The Member did not work as a team to improve Patient [ ]’s experience when Patient [ ] voiced his concerns about his care. The Member exploited Patient [ ]’s perceptions to serve his own needs.
The Member contravened the College’s Professional Standards by not maintaining boundaries between professional therapeutic relationships and non-professional personal relationships. The Member did not conduct himself in a way that promotes respect for the profession as a whole and did not act with integrity and professionalism in his dealings with Patient [ ].
Allegations #2(b)(i), (ii), (iii), (iv) and (v) in the Notice of Hearing are supported by paragraphs 12–73 and 75-78 in the Agreed Statement of Facts. The Member made remarks of a sexual nature to Patient [ ] by text and verbally when he attended at Patient [ ]’s home which contravened the College’s TNCR Standard, the Code of Conduct and the Professional Standards as set out above.
Allegations #3(a)(i), (ii), (iii), (iv), (v), (vi) and (b)(i), (ii), (iii), (iv) and (v) in the Notice of Hearing are supported by paragraphs 12-72 and 79 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct was clearly relevant to the practice of nursing and was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations in contravening the College’s TNCR Standard, the Code of Conduct and the Professional Standards.
The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty, deceit and moral failing and was a marked departure from the standards expected of a nurse. The Member’s text to the Patient on October 18, 2019 shows that the Member knew that his conduct was unacceptable and fell below the standards of the profession. The reminder to the Patient that he needed to be careful shows an element of deceit.
Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The conduct of sexual abuse casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.
Penalty
College Counsel and the Member’s Counsel advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission on Order requests that this Panel make an order as follows:
- Requiring the Member to appear before the Panel to be reprimanded within
3 months of the date that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for 5 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:
a) The Member will attend 2 meetings with a Regulatory Expert (the “Expert”) at the Member’s own expense and within 6 months from the date that this Order becomes final. To comply, the Member is required to ensure that:
i. The Expert has expertise in nursing regulation and has been approved by CNO in advance of the meetings;
ii. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;
iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules and decision tools (where applicable):
Code of Conduct,
Professional Standards, and
Therapeutic Nurse-Client Relationship;
iv. Before the first meeting, the Member reviews and completes the CNO’s self-directed learning package, One is One Too Many, at the Member’s own expense, including the self-directed Nurses’ Workbook;
v. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the completed Reflective Questionnaires and Nurses’ Workbook;
vi. The subject of the sessions with the Expert will include:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;
vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into the Member’s behaviour;
viii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on the Member’s certificate of registration;
b) For a period of 18 months from the date the Member returns to the practice of nursing, the Member will notify the Member’s employers of the decision. To comply, the Member is required to:
i. Inform any employer of the decision prior to commencing or prior to resuming employment in any nursing position;
ii. Ensure that CNO is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;
iii. Provide the Member’s employer(s) with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;
iv. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:
that they received a copy of the required documents, and
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
c) The Member shall not practice independently in the community for a period of 12 months from the date the Member returns to the practice of nursing.
- All documents delivered by the Member to CNO, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.
Penalty Submissions
Submissions were made by College Counsel.
The aggravating factors in this case were:
The serious nature of sexual abuse of Patient [ ] by the Member;
The Member breached the therapeutic nurse-client relationship;
The vulnerability of Patient [ ] as he was unable to walk and felt unsafe; and
The Member’s conduct was disgraceful and brings shame and discredit to the profession.
The mitigating factors in the case were:
The Member has no prior disciplinary history with the College;
The Member has taken responsibility for his actions and cooperated with the College by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College; and
The Member has shown remorse for his actions.
The proposed penalty provides for general deterrence through the 5-month suspension of the Member’s certificate of registration, which sends a message to the membership at large that this type of conduct is not acceptable and will not be tolerated.
The proposed penalty provides for specific deterrence through the oral reprimand and the 5-month suspension of the Member’s certificate of registration. The reprimand will assist the Member in understanding how his actions are perceived by the members of the profession and the public, thus deterring the Member from repeating the conduct. The suspension and reprimand also send a strong signal to the Member that this kind of behaviour is unacceptable and will not be tolerated.
The proposed penalty provides for remediation and rehabilitation through the 2 meetings with a Regulatory Expert and review of the College’s publications. These activities will help the Member return to the ethical practice expected of nurses.
Overall, the public is protected through the 18 months of employer notification and the 12 months of no independent practice in the community.
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. De Cesare (Discipline Committee, 2021): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member engaged in a personal relationship with a patient when she communicated by text message, telephone and met with and socialized with the patient in person outside of the therapeutic relationship. The member also accepted gifts of money, food and alcohol from the patient and disclosed her personal life to the patient. The penalty included an oral reprimand, a 4-month suspension of the member’s certificate of registration, a minimum of 1 meeting with a Regulatory Expert and 18 months of employer notification. In this case, the suspension is 4-months instead of 5-months and there is no prohibition of independent practice as there was no physical or sexual abuse. College Counsel submitted that a more severe penalty was needed in the case before this Panel to protect the public.
CNO v. Hohban (Discipline Committee, 2020): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member made sexual remarks to a patient and engaged in touching of a sexual nature with the patient. The member and the patient kissed while on a trip to Montreal. The allegations involved sexual abuse. The penalty included an oral reprimand, a 6-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert and 18 months of employer notification.
CNO v. O’Connell (Discipline Committee, 2019): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member met the patient who was vulnerable, lived in supportive housing and had a substance abuse disorder when the member was assigned as the Outreach Nurse to care for the patient. The member and the patient who showed a romantic interest in her exchanged over 1100 text messages and spoke on the phone for over 25 hours. The member failed to document when the frequency of the text messages and the nature of the relationship became problematic. The member’s conduct was found to be dishonourable, disgraceful and unprofessional. The penalty included an oral reprimand, a five-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert and 12 months of employer notification.
Submissions were made by the Member’s Counsel.
The Member’s Counsel submitted that the Member is remorseful, has cooperated with the College and has been ordered significant disciplinary sanctions.
Independent Legal Counsel’s advice to the Panel was that the Joint Submission on Order should be accepted unless to do so would bring the administration of this process into disrepute or would otherwise be contrary to the public interest. The cases presented are not identical to the one before the Panel but demonstrate a reasonable range of penalties in broadly similar circumstances.
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 Executive Director is directed to suspend the Member’s certificate of registration for 5 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.
The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:
a) The Member will attend 2 meetings with a Regulatory Expert (the “Expert”) at the Member’s own expense and within 6 months from the date that this Order becomes final. To comply, the Member is required to ensure that:
i. The Expert has expertise in nursing regulation and has been approved by CNO in advance of the meetings;
ii. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;
iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules and decision tools (where applicable):
Code of Conduct,
Professional Standards, and
Therapeutic Nurse-Client Relationship;
iv. Before the first meeting, the Member reviews and completes the CNO’s self-directed learning package, One is One Too Many, at the Member’s own expense, including the self-directed Nurses’ Workbook;
v. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the completed Reflective Questionnaires and Nurses’ Workbook;
vi. The subject of the sessions with the Expert will include:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;
vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into the Member’s behaviour;
viii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on the Member’s certificate of registration;
b) For a period of 18 months from the date the Member returns to the practice of nursing, the Member will notify the Member’s employers of the decision. To comply, the Member is required to:
i. Inform any employer of the decision prior to commencing or prior to resuming employment in any nursing position;
ii. Ensure that CNO is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;
iii. Provide the Member’s employer(s) with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;
iv. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:
that they received a copy of the required documents, and
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
c) The Member shall not practice independently in the community for a period of 12 months from the date the Member returns to the practice of nursing.
- All documents delivered by the Member to CNO, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.
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, rehabilitation and remediation, and public protection. The proposed penalty provides for general deterrence through the 5-month suspension of the Member’s certificate of registration, which sends a message to the membership that this type of conduct will not be tolerated. The proposed penalty provides for specific deterrence through the oral reprimand and the 5-month suspension of the Member’s certificate of registration, which sends a message to the Member that this type of conduct is unacceptable and will not be tolerated.
The proposed penalty provides for remediation and rehabilitation through the 2 meetings with a Regulatory Expert and review of the College’s publications, which will give the Member a greater understanding of his professional obligations and the boundaries related to the nurse-client relationship.
Overall, the public is protected through the 18 months of employer notification and the 12 months of no independent practice in the community, which will provide a heightened level of employer oversight on the Member’s to return to practice.
The penalty is also in line with what has been ordered in previous cases in similar circumstances.
I, Mary MacNeil, RN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.