College of Nurses of Ontario v. Stoutenburg, 2023 CanLII 149383

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Michael Hogard, RPN Chairperson Tim Crowder Public Member Mary MacNeil, RN Member Lalitha Poonasamy Public Member Matthew Secord, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) GLYNNIS HAWE for ) College of Nurses of Ontario

• and - )

MARK STOUTENBURG ) NO REPRESENTATION for Registration No. AH071024 ) Mark Stoutenburg

) CHRISTOPHER WIRTH ) Independent Legal Counsel

) Heard: October 26, 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 October 26, 2023, via videoconference.

The Allegations

The allegations against Mark Stoutenburg (the “Member”) as stated in the Notice of Hearing dated August 14, 2023 are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while registered with the College of Nurses of Ontario as a Registered Practical Nurse, you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession in that between September and/or October 2021 and February 2022, you advertised sexual massage services to the public using your title as a Registered Practical Nurse;

2. You have committed an act of professional misconduct as provided by sub-section 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and sub-section 1(16) of Ontario Regulation 799/93, in that while registered with the College of Nurses of Ontario as a Registered Practical Nurse, you inappropriately used a term, title or designation in respect of your practice, in that between September and/or October 2021 and February 2022, you advertised sexual massage services to the public using your title as a Registered Practical Nurse; and/or

3. 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 with the College of Nurses of Ontario as a Registered Practical Nurse, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional in that between September and/or October 2021 and February 2022, you advertised sexual massage services to the public using your title as a Registered Practical Nurse.

Member’s Plea

The Member admitted the allegations set out in paragraphs #1, #2 and #3 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 admissions were 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

The Member

1. Mark Stoutenburg (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on August 2, 2018.

2. The Member worked as a full-time perioperative RPN at Cambridge Memorial Hospital (the “Hospital”) from September 1, 2018 until his resignation from the Hospital on August 27, 2021.

3. The Member resigned his RPN membership with CNO on February 1, 2022.

4. The former Member has no prior CNO history and has never belonged to another membership class.

INCIDENTS RELEVANT TO THE ALLEGATIONS OF PROFESSIONAL MISCONDUCT

The Member’s Online Advertisements for Sexual Services

5. Between September 2021 and February 2022, the Member posted several advertisements on Kijiji.

6. The Member advertised his services as “Therapeutic Adult Body Works Personal Mobile Spa/Massage/ (18+)” and variations thereof.

7. The Kijiji advertisements included but were not limited to the following (reproduced as written):

• ▪ Registered Healthcare professional service provided at your door, any other door, or anywhere else you’d like it to be!!
• ▪ Covid precautions approved by registered Healthcare professional.
• ▪ Personal assistive devices welcome to encouraged !! ;)
• ▪ Text or call Mark [ ]
• ▪ Mark @ [ ]
• ▪ Experienced Registered Healthcare Professional providing Therapeutic, Relaxation, Stress Release, Intimate, YOU Focused, No Rush massage.
• ▪ Very Discreet and Extremely Confidential
• ▪ 1 – Purely Professional, Therapeutic 30 min$40 / 60min$60 Couples(+$20)
• ▪ 2 – Professional Therapeutic (+Sensual+Erogenous+Nude) 30min$60 / 60in$80 Couples (+$20)
• ▪ Additional by request: Touch reverse: (+$20 / Couples+40)
• ▪ Your Own Assistive Devices are Welcomed and Encouraged !! To Aid in the Completion” of your Experience…
• ▪ Registration number available upon request.
• ▪ I am a Healthcare Professional., My Statis (sic) allows me to provide safe practice in musculoskeletal therapies as well as many other various health modalities.
• ▪ !! “This experience is meant to be Educational, Informative, Organic and Entertaining.”!!
• ▪ “Fondly” Professional
• ▪ Relaxing: Therapeutics Designed to Target the Mind Body and Soul using Various Methodical Holistic Alternative Approaches and Techniques.
• ▪ Discuss health concerns, history, goals and expectations throughout a variety of Health concepts. The term medical advice can get very complicated for a professional of my skills, qualifications, knowledge, Experience and judgment.
• ▪ !! My disclaimer must include the fact that, although I am registered!!.
• ▪ !!”I will always recommend that you seek the opinion of your family practitioner before moving forward with any discussed therapeutic and health related topics and/or possibilities”…!!
• ▪ Discretion and Confidentiality are Absolute
• ▪ Intimate knowledge and understanding of Anatomy and Functions.
• ▪ List of credentials, certificates, licenses, skills, qualifications, (Resume), Available upon request!!
• ▪ Cash/E-Transfer
• ▪ Assistive personal items and devices welcomed and encouraged!! (18+)

8. The Member uploaded photographs accompanying the Kijiji advertisements, including but not limited to:

• ▪ The Member’s shirtless torso;
• ▪ a lapel pin with the letters “RPN” on it and “Registered Practical Nurse” engraved around a caduceus symbol (a “Nursing Pin”); and,
• ▪ The Member wearing scrubs, sunglasses on his head and a surgical mask over his mouth and nose.

CNO STANDARDS OF PRACTICE

9. CNO publishes nursing standards to set out the expectations for the practice of nursing. CNO’s published standards inform nurses of their accountabilities and apply to all nurses regardless of their role, job description or area of practice.

10. The Member acknowledges that he inappropriately used the protected RPN title in his Kijiji advertisements to attract clients to his mobile spa business. The Member admits that he attempted to solicit clients by leveraging his role and qualifications as a nurse to offer clients the opportunity to discuss health concerns and other “therapeutic” or “heath-related topics” during sexual massage sessions, thereby blurring the lines between personal and professional for himself and clients.

11. The Member admits that trading on his nursing education, skills and training to solicit clients for his sex work services breached CNO’s practice standards.

Code of Conduct

12. The Code of Conduct in effect at the time of the misconduct set out above included the following six principles:

1. Nurses respect the dignity of patients and treat them as individuals;
2. Nurses work together to promote patient well-being;
3. Nurses maintain patients’ trust by providing safe and competent care;
4. Nurses work respectfully with colleagues to best meet patients’ needs;
5. Nurses act with integrity to maintain patients’ trust; and
6. Nurses maintain public confidence in the nursing profession.

13. The Code of Conduct required that all nurses set and maintain strict professional boundaries with patients. Nurses do not, therefore, use their title or position to sell products or promote services for personal gain.

14. The Code of Conduct defined “boundaries” as the point when a relationship changes from professional and therapeutic to unprofessional and personal. Therapeutic nurse-patient relationships put patients first. Crossing a boundary means a nurse is misusing their power and trust in the relationship to meet their personal needs and/or behaving in an unprofessional manner with a patient.

15. CNO expects that nurses will not allow personal values to conflict with their professional obligation to provide safe, competent nursing care that is consistent with care plans and in collaboration with other members of the patient’s healthcare team. Although crossing a boundary can be intentional or unintentional, the impact on a patient’s ability to trust nurses is compromised and respect for the nursing profession in both the short and long term can be equally jeopardized.

Professional Standards

16. 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.

17. CNO’s Professional Standards states, 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 standard of the profession. Nurses are responsible for their actions and the consequences of those actions as well as for conducting themselves in ways that promote respect for the profession. Nurses demonstrate this standard by actions such as ensuring their practice is consistent with CNO’s standards of practice and guidelines as well as legislation.

18. Nurses demonstrate CNO’s Professional Standards by:

• ▪ Maintaining boundaries between professional therapeutic relationships and non-professional personal relationships;
• ▪ Ensuring [patients’] needs remain the focus of nurse-[patient] relationships;
• ▪ Ensuring his or her personal needs are met outside of the therapeutic nurse-[patient] relationships; and
• ▪ Recognizing the potential for [patient] abuse.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

19. The Member admits that he committed the acts of professional misconduct alleged in paragraphs 1-3 of the Notice of Hearing, as described in paragraphs 5-18 above, and in particular, that his conduct breached the Code of Conduct, and Professional Standards, and was dishonourable and unprofessional.

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 paragraph 19 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, conducted a verbal plea inquiry, and received a written plea inquiry which confirmed that the plea was voluntary and informed. 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.

College Counsel reviewed allegations #1, #2 and #3 with the Panel. With regard to allegation #1, College Counsel submitted that this allegation is supported by the Agreed Statement of Facts, which contained evidence of the relevant College standards of the profession, as well as the Member’s admissions that those standards were breached.

With regard to allegation #2, College Counsel submitted that the inappropriate use of a title, has historically been used to discipline members for using a protected nursing title for which they were not qualified. In this case, the Member traded on the protected title in which he was qualified using it to gain a personal and financial advantage with an advertisement for sexual services. The allegation for professional misconduct is made based on the nexus between the Member’s conduct and the profession in that the Member attempted to solicit clients using his protected Registered Practical Nurse (“RPN”) title and advertised that the sexual services he would provide would be offered within the professional context of his RPN practice. It was also unclear if the clients would have a therapeutic nurse-client relationship which the Member admits would be inappropriate.

With regard to allegation #3, College Counsel submitted that the Member’s admission to dishonourable and unprofessional misconduct is part of a global resolution between the parties and is appropriate. The Member’s conduct was relevant to his practice as he represented himself as a nurse and RPN in his advertisement and that, as a nurse, he could provide sexual services related to his nursing practice. By doing this, the Member traded on his title, failing to act with integrity and failing to inspire respect for the profession. The Member’s misconduct was also driven by personal gain. In this way, the Member’s conduct was unprofessional as it was a serious and persistent disregard for his professional obligations and also dishonourable as it represented a moral failing and brought shame to the profession.

The Member made no submissions on liability.

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, #2 and #3 of the Notice of Hearing. As to allegation #3, the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonourable 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.

Allegation #1 in the Notice of Hearing is supported by paragraphs 5–19 in the Agreed Statement of Facts. The Member admitted that he breached the College’s Code of Conduct and the Professional Standards when he posted several advertisements on Kijiji between September 2021 and February 2022 for registered healthcare professional services that offered therapeutic, sensual, erogenous, nude massage services. Assistive devices were encouraged and touch reverse services were also available on request and for an additional fee. Accompanying the advertisement were photographs of the Member wearing scrubs and a photo of an RPN lapel pin. In paragraph 10 of the Agreed Statement of Facts, the Member admitted that he attempted to solicit clients by leveraging his role and nursing qualifications and also that the service he was providing blurred the lines between personal and professional for himself and his clients. The Member admitted that his conduct breached the College’s practice standards and the Panel agreed. The Panel acknowledged that sex work is legitimate work and is provided by professionals in the trade. However, nursing professionals are in a different category. Nurses belong to a regulated profession since the work nurses provide and the controlled acts nurses perform have the potential for harm. Government legislation and the College’s Professional Standards, in the interest of protecting the public, do not allow touching of a sexual nature between members of the profession and clients because of the vulnerable nature of the clients, the power imbalance between nurse and client and the high potential for harm and abuse. The services being offered by the Member allowed for sexual touching and clearly violated this standard. Nurses also rely on an intimate and trusting relationship with clients to provide services, i.e. a therapeutic relationship. To support this, the Code of Conduct requires nurses to act with integrity and conduct themselves in a way that will maintain the trust of the public. The Professional Standards also require nurses to promote respect for the profession. The Member’s conduct sexualized the nursing role, bringing disrespect to himself and the profession. The Code of Conduct and the Professional Standards also requires nurses to maintain strict professional boundaries with patients. The nurse-client boundary was not present in the services the Member offered in his Kijiji advertisements, particularly with his offering of ‘touch reverse’ services. The Code of Conduct also requires nurses to abstain from using their title to promote services for personal gain. The Member’s advertisements for sexual massage services was clearly for personal gain and, as such, his conduct was a breach of both the Code of Conduct and the Professional Standards.

Allegation #2 in the Notice of Hearing is supported by paragraphs 5-19 in the Agreed Statement of Facts. The Member admitted that he inappropriately used his RPN title when he advertised his services as a ‘regulated healthcare professional’ and used pictures of himself in scrubs and also a picture of an RPN lapel pin to entice clients to trust him and use his services. The pictures of the RPN pin and the Member dressed in scrubs was a blatant misuse of his nursing title and profession to obtain services for personal gain.

Allegation #3 in the Notice of Hearing is supported by paragraphs 5-19 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in advertising for sexual services and including his nursing title in the advertisements so as to entice clients to use his services was clearly relevant to the practice of nursing. It was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations in breaching the Code of Conduct and the Professional Standards. The Member showed extremely poor judgement and failed to live up to the professional standards expected of him.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit by using his nursing title to support his business and provide personal and financial gain. The Member knew or ought to have known that his conduct was unacceptable and fell below the standards of a professional.

Penalty

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

1. Requiring the Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.

Penalty Submissions

Submissions on penalty were made by College Counsel.

College Counsel submitted that the Joint Submission on Order also provides in Appendix “A” an undertaking and agreement by the Member for the Member’s permanent resignation as a member of the College, effective October 26, 2023 (the “Undertaking”). Pursuant to this Undertaking, the Member undertakes, acknowledges and agrees to:

a) Permanently resign as a member of the College, effective from the date that the Order made by the Discipline Committee in accordance with the Joint Submission on Order becomes final;

b) Not apply for membership with the College as a Registered Nurse or Registered Practical Nurse at any time in the future;

c) Agree that the public portion of the College’s Register will indefinitely reflect that the Member entered into an Undertaking with the Executive Director to permanently resign as a member of the College as part of an agreed resolution of allegations of professional misconduct;

d) No longer have a right to the issuance or reinstatement of a Certificate of Registration from the College;

e) No longer have a right to use the title “Nurse”, “Registered Nurse”, “Registered Practical Nurse”, “RN”, “RPN” or a variation, an abbreviation or an equivalent in another language;

f) No longer have a right to hold himself out as a Nurse, Registered Nurse, Registered Practical Nurse or as a person who is qualified to practise in Ontario as a Nurse, Registered Nurse or Registered Practical Nurse;

g) No longer have a right to engage in the practice of nursing in any capacity; and

h) Agree the College is authorized to and may, in its sole discretion, provide a copy of the Undertaking and/or its terms to a governing body that regulates nursing in Canada or elsewhere in response to an inquiry or otherwise.

The aggravating factors in this case were:

• The Member’s conduct in holding himself out as a nurse while advertising for sexual services was clearly improper and he should have known it was improper;
• The Member abused the trust of the College to use his nursing title appropriately; and
• The Member acted out of his own self-interest and without regard for the impact his conduct may have to his patients or the profession.

The mitigating factors in this case were:

• The Member has taken responsibility for his conduct;
• The Member has cooperated with the College by admitting to the allegations and entering into an Agreed Statement of Facts and a Joint Submission on Order with the College; and
• The Member has no discipline history with the College.

College Counsel submitted that the primary goal of a penalty is protection of the public interest. The Undertaking agreed to by the Member is rigorous and provides the ultimate form of public protection since the Member will no longer practice nursing in Ontario. The Undertaking is also not just a resignation but includes admissions and an entry on the public record. Therefore, the Undertaking should inspire public confidence in the ability of the College to protect the public. College Counsel submitted that due to the nature of the penalty removing the Member from the College register, specific deterrence and rehabilitation are not essential elements of the penalty to be ordered by the Panel. Specific deterrence is not essential in this case because the Member has already undertaken to permanently resign from the practice of nursing. In such circumstances, the penalty of an oral reprimand is sufficient.

General deterrence is achieved through the oral reprimand and the fact that the findings will be publicly posted indefinitely and sends a signal to the profession that this type of conduct is taken seriously and has serious consequences.

Overall, the public is protected by the resignation of the Member’s certificate of registration and the ability of the College to communicate this to any governing body that regulates nursing in Canada. Accordingly, the Panel does not need to impose further conditions to achieve protection of the public.

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. Ward (Discipline Committee, 2017): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member accessed client’s personal information for a non-health related purpose, sent an inappropriate personal text message to a client and misappropriated a prescription sheet from the facility that the member then used to prescribe themselves a drug. The penalty included an oral reprimand and the member signed an undertaking to permanently resign as a member of the College and to never reapply for membership. This case is similar to the one before this Panel as it demonstrates that the member showed disregard for the profession and disrespected the nursing professional boundaries, blurring the line between professional and personal interest. This case also demonstrated that a permanent undertaking for similar aggravating and mitigating factors is acceptable and will act as an ultimate form of public protection.

CNO v. Stephens (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member, an RPN, was criminally convicted of fraud and was also found to have held herself out as an RN with more experience and education than she had obtained. The penalty included an oral reprimand, a 5-month suspension of the member’s certificate of registration, a minimum of 2 meetings with a Regulatory Expert and 24 months of employer notification. The member inappropriately used her nursing title and misrepresented her nursing qualifications. This case is similar to the one before this Panel as it engages the principles of honesty, integrity and respect for the profession. This case shows the Panel the type of penalty a panel may order where the conduct is analogous but where a permanent undertaking is not provided.

The Member made no submissions on penalty.

Penalty Decision

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

1. The Member is required to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.

Reasons for Penalty Decision

The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. In the normal course, 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.

In this case, because the Member has undertaken to permanently resign, the oral reprimand is a sufficient penalty, and no other specific deterrence is required.

Furthermore, because of the Member’s resignation, it is not necessary to consider remediation and rehabilitation in determining the appropriate penalty.

General deterrence is also addressed as the Panel concluded that had the Member’s situation been different and no Undertaking given, the Panel would have ordered a suspension, and terms, conditions and limitations on the Member’s certificate of registration which would have been in line with previous penalties.

Finally, the penalty of a reprimand is appropriate because the public is already protected through the permanent resignation and the Undertaking to never apply for registration as a nurse in Ontario in the future.

The penalty is also in line with what has been ordered in previous cases in similar circumstances as demonstrated by the cases submitted and referred to by College Counsel.

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.