DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL:
Mary MacNeil, RN Chairperson Andrea Arkell Public Member Ramona Dunn, RN Member Michael Schroder, NP Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO DENISE COONEY for College of Nurses of Ontario
- and -
KERRI MCARTHUR Registration No. 20228727 NO REPRESENTATION for Kerri McArthur
CHRISTOPHER WIRTH Independent Legal Counsel
Heard: January 19-20, 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”) commencing on January 19, 2023, via videoconference.
As Kerri McArthur (the “Member”) was not present, the hearing recessed for 15 minutes to allow time for the Member to appear. Upon reconvening, the Panel noted that the Member was still not in attendance.
By way of an affidavit from [ ], Prosecutions Clerk, dated November 18, 2022, College Counsel provided the Panel with evidence that the Member had been sent the Notice of Hearing. In her affidavit, [the Prosecutions Clerk] confirms that on November 2, 2022, she sent correspondence, which included the Notice of Hearing, to the Member’s last known address on the College Register. The Panel was satisfied that the Member had received adequate notice and therefore proceeded with the hearing in the Member’s absence.
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 names of any patients, or any information that could disclose their identities, referred to orally or in any documents presented at the Discipline hearing of Kerri McArthur.
The Panel considered the submissions of College Counsel and decided that there be an order preventing public disclosure and banning the publication or broadcasting of the names of any patients, or any information that could disclose their identities, referred to orally or in any documents presented at the Discipline hearing of Kerri McArthur.
The Allegations
The allegations against the Member as stated in the Notice of Hearing dated November 1, 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 practicing as a Registered Nurse at St. Joseph’s Healthcare Hamilton in Hamilton, Ontario (the “Hospital”), you sexually abused a patient, in that:
(a) in or about May 2020 and/or June 2020 you engaged in sexual intercourse and/or other forms of physical sexual relations with [the Patient]; and/or
(b) in or about May 2020 and/or June 2020 you made remarks of a sexual nature towards [the Patient].
- You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that, while practicing as a Registered Nurse at the Hospital, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, in that:
(a) in or about May 2020 and/or June 2020 you engaged in sexual intercourse and/or other forms of physical sexual relations with [the Patient];
(b) in or about May 2020 and/or June 2020 you made remarks of a sexual nature towards [the Patient];
(c) in or about May 2020 and/or June 2020 you failed to maintain the boundaries of the therapeutic nurse-patient relationship with [the Patient]; and/or
(d) in or about June 2020 you engaged in inappropriate communications with [the Patient]’s spouse, [ ].
- 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(7) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at the Hospital, you abused a client, verbally, physically and/or emotionally, in that:
a) in or about May 2020 and/or June 2020 you engaged in a personal and/or sexual relationship with [the Patient]; and/or
b) in or about June 2020 you engaged in inappropriate communications with [the Patient]’s spouse, [ ].
- You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at the Hospital, you engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional with respect to the following incidents:
a) in or about May 2020 and/or June 2020 you engaged in sexual intercourse and/or other forms of physical sexual relations with [the Patient];
b) in or about May 2020 and/or June 2020 you made remarks of a sexual nature towards [the Patient];
c) in or about May 2020 and/or June 2020 you engaged in a personal relationship with [the Patient]; and/or
d) in or about June 2020 you engaged in inappropriate communications with [the Patient]’s spouse, [ ].
Member’s Plea
Given that the Member was not present nor represented, she was deemed to have denied the allegations in the Notice of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.
Overview
The Member was a Registered Practical Nurse with the College from March 7, 2014 until January 13, 2020 and a Registered Nurse (“RN”) with the College from January 2, 2020 until April 21, 2021. The Member worked as an RN on the Concurrent Disorders Inpatient Unit (the “Unit”) at St. Joseph’s Healthcare Hamilton - West 5th Campus (the “Hospital”), in Hamilton, Ontario from April 21, 2020 until June 16, 2020 when her employment was terminated. The Hospital provides patients, who are experiencing mental health and substance abuse disorder(s) concurrently, with inpatient support and stabilization from a multidisciplinary healthcare team with the goal of transitioning the patient back into the community. On some of her shifts, the Member was assigned to provide care to [the Patient] during his 33 day inpatient stay.
It is alleged that the Member, in May and June 2020, maintained a sexual relationship with [the Patient] that included intercourse and/or other forms of physical sexual relations, and that in June 2020, the Member engaged in personal, non-therapeutic encounters with [the Patient]’s wife.
The key issues for the Panel to decide are as follows:
Did the Member commit an act of professional misconduct in that did she engage in sexual abuse of a patient?
Did the Member contravene or fail to meet standards of practice of the profession during her nurse-patient relationship with [the Patient] and by engaging in inappropriate communications with [the Patient]’s wife?
Did the Member verbally, physically or emotionally abuse [the Patient] and/or [the Patient]’s wife?
Did the Member engage in conduct that would reasonably be regarded by members of the profession to be disgraceful, dishonourable or unprofessional?
The Evidence
The Panel heard evidence from four witnesses and received 19 exhibits, including the College’s Professional Standards, Revised 2002 (“Professional Standards”), the Therapeutic Nurse-Client Relationship Standard, Revised 2006 (“TNCR Standard”) and the Code of Conduct.
Witness –1 - [ ] (“[Witness 1]”)
[Witness 1] is a Registered Nurse who has been registered with the College since 1999 and has been employed as an advanced practice consultant with the College since April 2022. [Witness 1] testified that the Member has not been entitled to practice nursing since April 21, 2021 as a result of a suspension by the Inquiries, Complaints and Reports Committee for failing to submit to a health examination. The Member’s employment record on “Find A Nurse” lists Hamilton Health Sciences – Juravinski Hospital and St. Joseph’s Healthcare Hamilton – West 5th Campus.
[Witness 1] testified that the College’s Professional Standards, last updated August 2018, was the version in force in April, May, and June 2020. [Witness 1] testified that the College’s TNCR Standard, last updated April 2019, was the version in force in April, May, and June 2020. [Witness 1] testified that the College’s Code of Conduct, which has not been revised, was the version in force in April, May, and June 2020.
The Panel found [Witness 1] to be credible, non-biased and professional. [Witness 1] did not have an interest in the outcome of the discipline hearing and was calm, direct and confident.
Witness #2 – [ ](“[ Witness 2]”)
[Witness 2] is a Registered Nurse who has been registered with the College since July 2011. [Witness 2] stated that he has worked in the mental health field for approximately 12 years and is currently employed at the Hospital. [Witness 2]’s current role is a clinical manager in the forensic psychiatry program since the summer of 2020. Prior to this role, [Witness 2] was the inpatient manager of the acute psychiatry program (May 2017 – Summer 2020) which included the portfolio of the Unit.
[Witness 2] testified that the Unit supports and stabilizes individuals living with mental health and substance abuse disorders concurrently with the goal of transitioning patients back into the community. The Unit is comprised of between 22-24 beds and has nursing staff primarily working 12 hour day and night shifts. The nursing staff routinely perform clinical monitoring rounds at patient specific intervals of between 15 to 60 minutes where the nurse would be expected to check on the well-being of the patient. [Witness 2] testified that patients are typically admitted to the Unit under the Mental Health Act on an involuntary basis from the psychiatric emergency services.
[Witness 2] testified that he knew the Member as an employee and that she was employed on the Unit from April until June 2020. [Witness 2] testified that the Member, at the start of her employment, underwent general hospital orientation, mental health orientation, personal safety training, electronic medical record orientation and concurrent disorders unit orientation. The orientation would have included reviewing St. Joseph’s Healthcare Hamilton’s professional conduct policies and organizational care standards. Referring to the Unit scheduling calendar, [Witness 2] testified that the Member worked shifts between April and June 2020.
[Witness 2] testified that he knew [the Patient], an in-patient on the Unit, through completion of his investigation of the incident. From [the Patient]’s electronic medical record, [Witness 2] testified that [the Patient] was admitted to the emergency department on May 7, 2020 and that he was admitted to the Unit as an in-patient from May 8, 2020 - June 9, 2020 inclusive. [Witness 2] testified that [the Patient] presented to the emergency department with paranoia, erratic behaviour and cocaine use, following the recent theft of his truck.
[Witness 2] testified that Dr. [A], diagnosed [the Patient] with psychosis (likely drug induced), placed him on a Form 1 due to lack of competence to care for himself and involuntarily admitted him to the Unit. [Witness 2] also testified that on May 9, 2020, the Unit’s psychiatrist, Dr. [B], placed [the Patient] on a Form 3 which extended the length of involuntary hospital admission to 13 days. [Witness 2] testified that on May 13, 2020, Dr. [C], a psychiatrist, hypothesized that [the Patient] may have underlying bipolar diathesis that are triggered by substance abuse and [the Patient] was subsequently placed on lithium after he declined antipsychotic medication. [The Patient] was then made a voluntary patient. [Witness 2] testified that [the Patient] was discharged to the community on June 9, 2020 with a most responsible diagnosis of Bipolar Disorder Type I with manic episode with psychotic features and narcissistic personality disorder traits and chronic anger management.
[Witness 2], referring to an e-mail that he forwarded on June 9, 2020 to [ ], a Human Resources professional, testified that he wrote to the Member to review expectations of staff-client relationships following a code white that was triggered by a patient who felt jealous over the Member’s flirtatious interactions with [the Patient]. [Witness 2] testified that the Member did not respond to the e-mail.
[Witness 2] testified that on June 8, 2020, he received an e-mail from [ ] (“[Nurse A]”), an RPN on the Unit. In his e-mail, [Nurse A] stated that while doing rounds at 19:00, he observed the Member in [the Patient]’s room. The e-mail outlined that the Member had attempted to hide in [the Patient]’s bathroom upon [Nurse A]’s entry into the room. The Member was not the primary nurse of [the Patient] on this shift and the Member was not scheduled to do rounds at this time.
[Witness 2] testified that on June 11, 2020, he received an e-mail from [Nurse B], a Registered Nurse on the Unit, outlining that [the Patient]’s wife had called her and made her aware that the Member had been repeatedly calling, sending text messages and FaceTiming [the Patient] after he had been discharged from the Unit.
[Witness 2] testified that on June 12, 2020, he sent an e-mail to [ ], Director for the general psychiatry services; [ ], Director for nursing practice; [ ], Director of nursing practice; [ ], a Human Resources professional and [ ], Manager of the risk department. The e-mail outlined steps that [Witness 2] had taken in the investigation including interviewing involved Unit staff and reviewing camera footage. The e-mail outlined staff reports and camera footage that the Member and [the Patient] were sitting together on a bench outside the Unit and sitting in the gymnasium together on June 8, 2020.
[Witness 2] testified regarding an e-mail chain between June 13, 2020 and June 16, 2020 between himself and [the Patient]’s wife regarding text message and journal evidence. The e-mail from [the Patient]’s wife to [Witness 2] contained screenshots of calls made to [the Patient]’s cell phone from phone number [ ] which was the phone number of the Member. [Witness 2] testified that [the Patient]’s wife forwarded a picture of the Member (without dress on the bottom half) which was sent by the Member to [the Patient]’s cell phone. [Witness 2] testified that the person in the text message photo was the Member.
[Witness 2] testified regarding his notes from his investigation interview with the Member on June 16, 2020. [Witness 2] testified that the Member denied having a personal, romantic or sexual relationship with [the Patient]. [Witness 2] testified that the Member denied providing personal contact information to [the Patient] or receiving personal contact information from [the Patient]. [Witness 2] testified that the Member denied having contact with [the Patient] outside of work hours or while being placed off work pending the investigation. [Witness 2] testified that the Member could not explain a call log containing both the Member’s phone number and [the Patient]’s phone number. [Witness 2] testified that the Member denied sending texts or nude photos to [the Patient]. [Witness 2] testified that at the conclusion of the investigation interview, he provided an employment termination letter to the Member which included outlining the mandatory reporting requirements to the College.
The Panel found [Witness 2] to be forthcoming and credible. [Witness 2] was able to support his oral testimony with documentation from his investigation and the documentary evidence supported his oral evidence. [Witness 2] was calm, direct, confident, was clear as to the events, referred to the exhibits when College Counsel referenced them, was non-biased and professional.
Witness #3 – The Patient (“[ ]”)
[The Patient] is a [ ] year old male who works in [ ]. He has been married to [the Patient’s wife] for [ ] years and they have [children] together.
[The Patient] testified that he was working multiple jobs in the spring of 2020 which coincided with the start of the COVID-19 pandemic. [The Patient] testified that his truck and tools were stolen, he had trouble sleeping and got delusional and paranoid and was subsequently hospitalized at the Hospital for a duration of 5 weeks where he was diagnosed with Bipolar Disorder. [The Patient] testified that he kept a journal while in the Hospital.
[The Patient] testified, referencing his journal notes, that during his initial contact with the Member, he wrote “great smile, interested in me”. [The Patient] testified that the Member had her mask on during his initial interview but he could tell that she was smiling at him. During the initial interview, [the Patient] offered that he had done cocaine and the Member responded that she partied as well. [The Patient] testified that he asked the Member for her phone number and the Member provided this to him which he subsequently wrote down in his journal. [The Patient] testified that subsequently, the Member and he exchanged phone calls, text messages and text pictures. [The Patient] testified that the Member had sent him a picture by text message of her with an absence of bottom clothing. [The Patient] testified that he also received a text picture of the Member with her cleavage exposed. [The Patient] testified that he erased some of the text messages out of fear of discovery by his wife. [The Patient] testified that some of the text messages referenced a future life together with the Member after [the Patient]’s hospital discharge. [The Patient] testified that the Member, at his request, brought him cigars and limes while he was hospitalized.
[The Patient] testified about a journal entry on May 29, 2020 which states “I love to fuck her twice. We even made out in my room a few times throughout the night”. [The Patient] denied having sexual intercourse on May 29, 2020, but that he did “make-out” with the Member in his room. [The Patient] testified about a journal entry on May 30, 2020, “Had my favourite nurse do rounds & downs on me tonight about 4-5 times, We kissed and I received oral pleasure 2X”. [The Patient] testified that his favourite nurse referred to the Member and that “rounds & downs” referred to when the Member did her rounds, she would go “down” by performing oral sex on him. [The Patient] testified about a journal entry from May 31, 2020 that states “We even did it.........1st time was cowgirl. 2nd time was doggystyle.....We had to make it quick as she was working on rounds”. [The Patient] testified that he did have sexual intercourse with the Member on May 31, 2020.
[The Patient] testified about the journal entry “Favorite nurse Kerry worked tonight. We had a bit of a tiff when I asked for some space”. [The Patient] explained the journal entry referenced a conversation where he and the Member disagreed as he wanted to go home after discharge, however, the Member wanted him to move in with her.
[The Patient] recounts the journal entry “Unfortunately [co-patient] caught us and got jealous.....later he flipped a table”. [The Patient] testified about a co-patient getting mad as the Member was flirtatious with [the Patient] and that he found a poem from the Member in [the Patient]’s pocket.
[The Patient] testified about the journal entry from June 8, 2020 at 7:00 “She came to say goodbye and [Nurse A] caught us. He noticed her running into the washroom.” He asked who else was in here and I said no one. He said “What am I, ? stupid”. Saw Kerry in the bathroom and she said she was doing rounds and they left”. [The Patient] testified that he and the Member had been making out when [Nurse A] knocked on the door.
[The Patient] testified that on June 10, 2020, after his discharge, he met up with the Member at her other place of employment. [The Patient] testified that after a fight with his wife, he stayed the night at the Member’s house in Welland, Ontario during which the Member and he had sexual intercourse.
The Panel found the testimony of [the Patient] to be credible. [The Patient] was honest when he could not recall certain details or timelines. The documentary evidence contained within the journal supported his oral testimony. [The Patient] was forthcoming about the sexual nature of his relationship with the Member.
Witness #4 – The Patient’s Wife (“[ ]”)
[The Patient’s wife] testified that prior to April 2020, she had a great and beautiful family life. [The Patient’s wife] was married to [the Patient] and they had [ ] children together. [The Patient’s wife] testified that [the Patient] worked hard in April 2020 to provide for her family in case the pandemic shut things down. [The Patient’s wife] testified that [the Patient]’s work truck and tools had been stolen [ ] and that [the Patient] was not sleeping and worried about how he would work given the circumstances. [The Patient’s wife] testified that she noticed [the Patient] saying that he was being followed at work, that people were talking to him through the windows at work and that people in cars were spying on him. [The Patient’s wife] testified that [the Patient]’s parents took him to the Hospital where he was subsequently admitted for approximately 5 weeks. [The Patient’s wife] testified that [the Patient] was crying at the dinner table after his discharge which was not typical of him. [The Patient’s wife] testified that on June 9, 2020 [the Patient] was talking and texting to someone on his cell phone and noted that [the Patient] changed the password on his phone.
[The Patient’s wife] testified that she questioned [the Patient] regarding the text messages sent to his phone from “KM” and [the Patient] admitted to her that he was in love with a nurse from the Hospital. [The Patient] subsequently left the house and came back the next day. [The Patient’s wife] testified that she started tracking [the Patient]‘s phone and found him on a concession road by the Juravinski Hospital. [The Patient’s wife] contacted St. Joseph’s Healthcare Hamilton - West 5th Campus in regard to the relationship between [the Patient] and the Member.
[The Patient’s wife] testified that on June 13, 2020 she answered a text message from the Member on [the Patient]’s phone and invited the Member to contact her on her cell phone. The Member responded to [the Patient’s wife] and communicated by text with her for over 3 hours.
[The Patient’s wife] testified that the Member admitted in the text messages that she struggled with mental health issues and that she had just lost her fiancé one month ago as a result of an overdose. In the texts, the Member attempted to justify her relationship with [the Patient] “I connected with him because he understood my situation”. The Member told [the Patient’s wife] “my advice is to chill a bit” in response to [the Patient’s wife] wanting her relationship with her husband back. In the texts, [the Patient’s wife] told the Member that [the Patient] wanted to have a FaceTime with her and her goal was to allow [the Patient] an opportunity to end the relationship with the Member. [The Patient’s wife] testified that [the Patient] did have the FaceTime with the Member.
[The Patient’s wife] testified that she took screenshots of the calls from [the Patient]’s cell phone which indicated the calls came from the Member’s phone.
The Panel found the testimony of [the Patient’s wife] to be honest and clear surrounding the pre and post hospitalization periods of [the Patient]. [The Patient’s wife] had excellent memory and good recall of events and timelines and was forthright and credible in her testimony.
Final Submissions
College Counsel submitted that this was a case involving serious breaches of the nurse-client relationship. College Counsel submitted that the Panel should rely on all the evidence in order to find that the College had proven the allegations beyond a reasonable doubt. The Member did not attend the discipline hearing and was deemed to deny all the allegations. The burden of proof was borne by the College.
With respect to [Witness 1] and [Witness 2], College Counsel submitted that they had no direct first-hand knowledge nor interaction with [the Patient] or the Member.
College Counsel submitted that the evidence of [Witness 1] provided background and context which was helpful in understanding the Member’s registration history and the relevant College standards of practice and Code of Conduct.
College Counsel submitted that since [Witness 2] did not have first-hand knowledge of the events, his evidence would be hearsay and therefore it could not be relied on for the truth of its content. However, the Member’s shift schedule, [the Patient]’s health records and investigation notes pertaining to the Member that were referred to in [Witness 2]’s testimony are considered business records which could be relied on for the truth of their contents according to section 35 of Ontario’s Evidence Act.
College Counsel submitted that [the Patient] and [the Patient’s wife] both had direct first-hand knowledge of the events. Their evidence was credible and reliable. College Counsel submitted that there would be no reason for [the Patient] to fabricate or embellish this evidence given that he was in a committed relationship. In his testimony, [the Patient] was honest that his memory was not perfect. However, he was assisted in his testimony with his contemporaneous journal notes. [The Patient]’s testimony and journal entries were corroborated by and were consistent with the evidence of [Witness 2].
The Member developed a personal, romantic, and sexual relationship with [the Patient]. [The Patient] testified that this behaviour was inconsistent with his normal behaviour and provided insight that this behaviour was due to him being “sick”.
The Member had recently started employment at the Hospital when these incidents occurred. College Counsel submitted that the Member’s shift schedule was consistent with the dates of the events logged in [the Patient]’s journal.
College Counsel submitted that the Member’s phone number appeared 4 times in [the Patient]’s journal. [The Patient] testified that he had asked the Member for her phone number and she gave it to him. The Member and [the Patient] started texting and calling one another. [The Patient] testified that he had received a text picture of the Member without any bottom clothing. [The Patient] testified that he deleted the text messages and additional text photos so that his wife would not find them. College Counsel submitted that this should be viewed as understandable given the circumstances and should not undermine [the Patient]’s credibility.
College Counsel submitted that [the Patient]’s testimony of a co-patient becoming aware of the relationship was consistent with [Witness 2]’s testimony and e-mail evidence that [Witness 2] became aware of a patient becoming jealous over a male co-patient interacting with the Member.
College Counsel submitted that [the Patient]’s journal entry regarding him and the Member being caught by [Nurse A] was corroborated with the e-mail that [Witness 2] received from [Nurse A] regarding finding the Member in [the Patient]’s room with no apparent clinical reason.
College Counsel submitted that after discharge, [the Patient] went to visit the Member at her other place of employment, the Juravinski Hospital, which is corroborated with her places of employment listed on her “Find A Nurse” profile. [The Patient] testified that they had sexual intercourse at the Member’s residence. This also corresponds with [the Patient’s wife]’s testimony that she had a fight with [the Patient] and that he left their residence after he disclosed to her that he was in love with a nurse.
[The Patient’s wife] entered into a text message exchange with the Member after she invited the Member, through using her husband’s cell phone, to text her on her personal cell phone. College Counsel submitted that although the Member denied that an inappropriate relationship existed between her and [the Patient], the Member did admit that she connected and cared for him. The Member did disclose personal information about herself to [the Patient’s wife]. The Member provided relationship advice to [the Patient’s wife].
With regard to Allegation #1(a), College Counsel submitted that this situation met the definition of sexual abuse of a patient as defined in the Health Professions Procedural Code as the evidence would show that the Member did have sexual intercourse with [the Patient] and that [the Patient] was classified as the Member’s patient as [the Patient] received care from the Member during his in-patient admission at the Hospital. Additionally, as the Member and [the Patient] had sexual intercourse after [the Patient]’s discharge from the Hospital, this also meets the definition of sexual abuse as defined by the Health Professions Procedural Code as it occurred within one year following when [the Patient] ceased to be the Member’s patient. The testimony from [the Patient] of his relationship with the Member included that he had sexual intercourse with the Member two times at the Hospital and one time approximately a week after discharge. [The Patient] testified that the Member performed oral sex on him at least two times while he was at the Hospital.
With regard to Allegation #1(b), College Counsel submitted that the text message sent by the Member to [the Patient] which shows the Member without bottoms is sexually explicit and would qualify as a sexual remark. College Counsel submitted that there was no justifiable reason for the Member to have sent the picture to [the Patient]. [The Patient] testified to flirtatious conversations which led to the eventual plans for the Member and [the Patient] to live together upon discharge. Although the Panel does not have all the text messages exchanged, there would be no justifiable reason for the Member to have sent [the Patient] a picture text with no bottoms on.
With regard to Allegation #2, College Counsel submitted that [Witness 1] testified regarding the standards of practice being the Professional Standards, the TNCR Standard and the Code of Conduct. College Counsel submitted that the Member’s conduct was so clearly egregious that an expert witness was not required and submitted the case of Novick v. Ontario College of Teachers (Divisional Court, 2016) to substantiate this.
With regard to the Professional Standards, College Counsel submitted that the client’s needs are the focus of the relationship, which is based upon trust, intimacy and the appropriate use of power. It is the responsibility of the nurse to establish and maintain the therapeutic relationship. A nurse meets the standard by maintaining boundaries between professional therapeutic relationships and non-professional personal relationships, ensuring clients’ needs remain the focus of nurse-client relationships and ensuring that his/her personal needs are met outside therapeutic nurse-client relationships. Significant blurring of the boundaries between professional and personal relationships occurred and the Member put her own personal needs above the needs of [the Patient]. Rather than preventing abuse, the Member perpetrated it.
With respect to the TNCR Standard, College Counsel submitted that the nurse meets the standard by not entering into a friendship, romantic or sexual relationship with the client when a therapeutic relationship exists and ensuring that after the nurse-client relationship is terminated, not engaging in a personal, romantic or sexual relationship with the client or the client’s significant other for one year following the termination of the therapeutic relationship. College Counsel submitted that the TNCR Standard was breached by the Member’s conduct when she exchanged cell phone numbers with [the Patient], sent a sexual text message photograph to [the Patient], brought [the Patient] personal items, talked about entering into a relationship with [the Patient] after discharge and engaged in sexual intercourse with [the Patient].
College Counsel submitted that the communication the Member had with the spouse of a recently discharged psychiatric patient was wholly inappropriate and a breach of the standards. [The Patient’s wife] was the patient’s significant other. The TNCR Standard states that the Member is responsible for ensuring that he/she does not interfere with the patient’s personal relationships and abstains from disclosing personal information unless it meets the therapeutic need of the client. The text message exchange between the Member and patient’s wife was inappropriate in this context. The Member interfered with their relationship when she offered advice and disclosed that she cared for [the Patient] and suggested to his wife that she should just “chill out”.
With regard to Allegation #3, College Counsel submitted that the definition of abuse was defined in the TNCR Standard as the misuse of the power imbalance that is intrinsic in the nurse-client relationship. The abuse in this case was engaging in a romantic and sexual relationship with [the Patient] and engaging in inappropriate communications with him. This would be considered a misuse of the power imbalance and a deep violation of [the Patient]’s trust.
With regard to Allegation #4, College Counsel submitted that all of the Member’s conduct was alleged to be disgraceful, dishonourable and unprofessional. The Member developed a personal and sexual relationship with a very vulnerable patient. The conduct was unprofessional as it had a serious disregard for the fundamental obligation for members to maintain a therapeutic professional relationship. The conduct was disgraceful and dishonourable as it involved moral failing and brought shame on the Member and by extension the nursing profession.
College Counsel submitted the following cases to the Panel to demonstrate that cases involving personal or sexual relationships with patients involve misconduct that is considered disgraceful, dishonourable and unprofessional:
CNO v. Ramos (Discipline Committee, 2020): In this case, the member admitted to an inappropriate personal relationship with a patient who was vulnerable. The member denied that it was a sexual relationship but admitted that it was a personal relationship. The communication included text messages. The panel found that this personal relationship was disgraceful, dishonourable and unprofessional.
CNO v. Ramos (Discipline Committee, 2022): In this case, the member admitted to having a personal and sexual relationship with a patient which included text messages and sexual intercourse. The panel found that his conduct was disgraceful, dishonourable and unprofessional.
College Counsel asked the Panel to make findings that the Member’s conduct was unprofessional, dishonourable and disgraceful.
Decision
The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities based upon clear, cogent and convincing evidence.
Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), 1(b), 2(a), 2(b), 2(c), 2(d), 3(a), 3(b), 4(a), 4(b), 4(c) and 4(d) in the Notice of Hearing. With respect to allegations 3(a) and 3(b), the Panel finds that the Member abused [the Patient] verbally, physically and emotionally. As to allegations 4(a), 4(b), 4(c) and 4(d), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional.
Reasons for Decision
College Counsel presented four witnesses and 19 exhibits to support the allegations. The Panel assessed the credibility of the witnesses by taking into account the appearance and demeanour of the witnesses, their capacity to remember the events, the probability and reasonableness of their evidence and their interest in the outcome of this hearing.
With respect to allegation 1(a), the evidence of [Witness 2] is supported by documentary evidence that [the Patient] was a patient of the Member during the period in which the events took place. The evidence of [the Patient], which was accepted by the Panel, established that the Member engaged in sexual intercourse and oral sex with [the Patient] during a period in which the Member was his healthcare provider. Additionally, the Member engaged in sexual intercourse with [the Patient] once within a week after [the Patient] had been discharged from the Facility. Accordingly, the Panel finds that the Member sexually abused [the Patient].
With respect to allegation 1(b), the Panel accepted the testimony of [the Patient] that, while he was a patient at the Facility, he received a text message picture from the Member revealing her cleavage. Additionally, the Panel viewed a text message picture of the Member with an absence of bottom clothing that [the Patient] testified he received on his cell phone while he was a patient at the Facility. The Panel concluded that remarks of a sexual nature were made by the Member when she sent the two text message pictures to [the Patient] and as such, the Member sexually abused [the Patient].
With respect to allegations 2(a) and 2(b), the Panel accepted the testimony of [the Patient] which was supported by his personal journal documentary evidence that [the Patient] and the Member engaged in oral sex and sexual intercourse at least three times. The Panel accepted the text message picture evidence of the Member without bottom clothing sent from the Member’s cell phone. The Member’s conduct is a clear violation of the College’s TNCR Standard which outlines that a nurse meets the standard by “not entering a friendship, or a romantic, sexual or other personal relationship with a client when a therapeutic relationship exists”. The College’s Professional Standards states that a nurse meets the standards by “ensuring his/her personal needs are met outside of therapeutic nurse-client relationships”. The Member contravened the Professional Standards by exploiting the therapeutic nurse-client relationship for the purpose of meeting her own personal and sexual needs.
With respect to allegation 2(c), the Panel accepted the testimony of [the Patient] and his personal journal documentary evidence. Additionally, the Panel accepted the e-mail documentary evidence from [Witness 2]. [The Patient] testified that he had sexual intercourse with the Member on two occasions and oral sex on a number of occasions while he was a patient at the Hospital. [The Patient] testified that he met up with the Member at her other place of employment and went back to the Member’s personal residence where they had sexual intercourse. [Witness 2] testified that he received e-mail correspondence from another nurse on the Unit who observed the Member and [the Patient] alone in [the Patient]’s room. This occurred while the Member was not assigned to be [the Patient]’s nurse or assigned to do rounds. [the Patient] testified that when a co-nurse observed the Member and him alone in the room, the Member had just finished performing oral sex on [the Patient]. These interactions support that the Member violated the boundaries outlined in the TNCR Standard. The TNCR Standard outlines that it is the nurse’s, not the patient’s, role to establish and maintain the boundaries of the therapeutic-nurse client relationship. Similarly, the Member contravened the College’s Professional Standards as she failed to “maintain boundaries between professional therapeutic relationships and non-professional personal relationships”.
With respect to allegation 2(d), the Panel accepted the testimony of [the Patient’s wife] and the documentary evidence of the text message chain between the Member and [the Patient]’s wife. The Member’s text messages to [the Patient's wife] offered relationship advice and suggested that [the Patient]’s wife “chill out”. The Member breached the TNCR Standard as she violated boundaries by interfering with [the Patient]’s personal relationship that he had with his spouse.
With respect to allegations 3(a) and 3(b), the Panel found that the Member abused [the Patient] verbally, physically and emotionally. The Panel accepted the testimony and documentary evidence of [the Patient] that chronicled his emotions during the sexual relationship that developed with the Member which included intercourse and physical sexual relations, the Member’s verbal communications with him and the emotional impact her conduct had on him. The Panel accepted the testimony and documentary evidence of [the Patient’s wife] which outlined the emotional trauma to [the Patient] which occurred as a result of the inappropriate communication through the text message communication that [the Patient’s wife] had with the Member.
With respect to allegations 4(a), 4(b), 4(c) and 4(d), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional. The Member’s conduct was clearly relevant to the practice of nursing and was unprofessional as it demonstrated a serious disregard for her professional obligations in breaching the Professional Standards, the TNCR Standard and the Code of Conduct.
The Panel finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit. She violated a vulnerable patient’s trust and sexually abused a patient. The Member 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 disgraceful as it shames the Member and by extension the profession. The Member’s conduct of verbally, physically and emotionally abusing [the Patient] casts serious doubt on her moral fitness and inherent ability to discharge the higher obligations the public expects nursing professionals to meet.
Penalty
Penalty Submissions
College Counsel submitted that, in view of the Panel’s findings of professional misconduct, it should make an Order as follows:
Requiring the Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.
Directing the Executive Director to immediately revoke the Member’s certificate of registration.
Requiring the Member to reimburse CNO for funding provided to [the Patient] in the amount permitted by Ontario Regulation 59/94 under the program required by s. 85.7 of the Health Professions Procedural Code, if [the Patient] accesses the fund. College Counsel submitted that in light of the Panel’s findings of sexual abuse, it is obliged by s.51(5) of the Code to direct the Registrar to revoke the Member’s certificate of registration immediately and to order the Member to appear before the Panel for an oral reprimand.
College Counsel also submitted that the Panel should make an order in accordance with s.51(2)(5.1) of the Code which outlines that if the professional misconduct included sexual abuse of the patient, the Member is to reimburse the College for funding provided for the patient for the purpose of counselling.
College Counsel submitted that the aggravating factors in this case were:
The Member demonstrated a tremendous breach of trust;
The Member took advantage of a highly vulnerable patient for her own personal gratification;
There was no therapeutic value to the conduct that the Member engaged in;
The Member interfered in [the Patient]’s personal life to the extent that he considered leaving his family to move in with the Member;
This was a deeply intimate relationship which was entirely incompatible with nursing; and
The Member sexually abused [the Patient] multiple times.
The Member chose not to participate in the process which can not be held against her. However, this left a void in terms of any mitigating factors for the Panel to consider.
The proposed penalty would achieve public protection by removing the Member from nursing practice entirely.
The proposed penalty provides for general deterrence through the revocation of the Member’s certificate of registration given the strong signal that this will send to the nursing profession that there are serious consequences for this type of misconduct.
The proposed penalty provides for specific deterrence through the oral reprimand and the revocation of the Member’s certificate of registration, which will send a message to the Member that this type of behaviour is unacceptable.
Remediation and rehabilitation are not considered given that the Member will be removed from nursing practice.
College Counsel submitted the following cases to the Panel to demonstrate that the proposed penalty fell within the penalty range of similar cases from this Discipline Committee.
CNO v. Ramos (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member admitted to engaging in a personal and sexual relationship with a patient which included text messages and multiple instances of sexual intercourse. The penalty included an oral reprimand, reimbursement to the College for the patient counselling program of up to a maximum of $5,000.00 and immediate revocation of the member’s certificate of registration. The counselling maximum of $5,000.00 was reached as part of a Joint Submission on Order between the College and the member which considered mitigating factors. In the case before this Panel, the order for reimbursement of counselling expenses does not have a limit as the Member did not participate in the resolution and there are no mitigating factors to consider.
CNO v. Riehl (Discipline Committee, 2019): In this case, the member was not present or represented at the hearing. The member was alleged to have maintained a sexual relationship with a patient that included sexual intercourse. The member was also alleged to have engaged in a personal, non-therapeutic relationship with another patient who was married to the first patient. The member was found to have committed acts of professional misconduct. The penalty included an oral reprimand and immediate revocation of the member’s certificate of registration. The College did not seek an order for reimbursement of counselling expenses.
CNO v. Pezzano (Discipline Committee, 2020). This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member admitted to communicating by way of text message and phone with a patient outside of the therapeutic nurse-client relationship. The member also engaged in a personal, romantic and sexual relationship with the patient including physical sexual relations. The penalty included an oral reprimand, reimbursement to the College for the patient counselling program of up to a maximum of $5,000.00 and immediate revocation of the member’s certificate of registration.
In regards to the reimbursement of funding to the College for the patient counselling program, College Counsel acknowledged that the CNO v. Riehl case did not include any provision for patient counselling expenses. The College submitted that it was the more recent practice of the College to include reimbursement for patient counselling expenses as outlined in s.51(2)(5.1) of the Code which was included in both the Ramos and Pezzano cases.
Penalty Decision
The Panel accepts the College’s Submission on Order and accordingly orders:
The Member is required to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.
The Executive Director is directed to immediately revoke the Member’s certificate of registration.
The Member is required to reimburse CNO for funding provided to [the Patient] in the amount permitted by Ontario Regulation 59/94 under the program required by s. 85.7 of the Health Professions Procedural Code, if [the Patient] accesses the fund.
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.
Given the Panel’s findings that the Member committed professional misconduct by sexually abusing [the Patient], it is mandatory under s.51(5) of the Code for the Panel to order that the Member’s certificate of registration be revoked and that she be reprimanded.
Further, the Panel’s primary concern is protection of the public which is achieved by the immediate revocation of the Member’s certificate of registration. The revocation of the Member’s certificate of registration and the oral reprimand address specific deterrence. This penalty achieves general deterrence through the revocation of the Member’s certificate of registration, which will send a strong message to members of the profession that there are serious consequences for sexual abuse of patients/clients, boundary violations of the nurse-client relationship and verbal, physical, and emotional abuse of a patient.
The Member chose not to participate in this process. She has offered no explanation and has shown no insight into her conduct or behaviour. As a result, the Panel has no mitigating factors to consider. Given that revocation is mandatory, the Panel did not need to consider rehabilitation of the Member.
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.