College of Nurses of Ontario v. [Member], 2023 ONCNO 96472

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Michael Hogard, RPN Chairperson

Carly Gilchrist, RPN Member Sandra Larmour Public Member

Sherry Szucsko-Bedard, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JEAN-CLAUDE KILLEY for

) College of Nurses of Ontario

• and - )

[MEMBER] ) NO REPRESENTATION for

Registration No. [ ] ) [Member]

) ELYSE SUNSHINE

) Amicus Curiae

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: December 15, 19-21, 2022 &

February 27, 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 December 15, 2022, via videoconference.

Publication Ban

College Counsel brought a motion pursuant to s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order preventing public disclosure and banning the publication or broadcasting of the name of the patient, or any information that could disclose the identity of the patient, referred to orally or in any documents presented at the Discipline hearing of [the Member].

The Panel considered the submissions of the College and the Member and decided that there be an order preventing public disclosure and banning the 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 at the Discipline hearing of [the Member].

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:

1. 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 on or about January 1, 2020, while working as a Registered Nurse for the Victorian Order of Nurses Middlesex-Elgin Branch in London, Ontario, you sexually abused [a Patient] by engaging in touching of a sexual nature including inserting your fingers into and/or touching [the Patient]’s vagina without clinical purpose.

2. 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 on or about January 1, 2020, while working as a Registered Nurse for the Victorian Order of Nurses Middlesex-Elgin Branch in London, Ontario, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, by engaging in touching of a sexual nature of [the Patient] including inserting your fingers into and/or touching [the Patient]’s vagina without clinical purpose.

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 on or about January 1, 2020, while working as a Registered Nurse for the Victorian Order of Nurses Middlesex-Elgin Branch in London, Ontario VON, 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, by engaging in touching of a sexual nature of [the Patient] including inserting your fingers into and/or touching [the Patient]’s vagina without clinical purpose.

Member’s Plea

The Member denied the allegations set out in paragraphs #1, #2 and #3 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 is a Registered Nurse (“RN”) and was employed at the Victorian Order of Nurses (“VON”) at the time of the alleged incident. The Member was to attend to clients in their homes to provide nursing care. Some of the Member’s responsibilities were administering medication, starting intravenous lines and medications, completing peripheral intravenous central catheterization (“PICC”) care, wound care, and providing catheter care and general health teaching of the clients' overall care needs. The Member had been a practicing RN for approximately 11 months before he met [ ] (the “Patient”). Prior to obtaining his nursing registration, the Member was a Personal Support Worker (“PSW”) with the VON providing activities of daily living care to a wide range of clients in their homes since June 2018.

The primary allegation against the Member came from the Patient, who testified as to her experience while the Member provided care to her in her home, during the dates of December 29-31, 2019 and January 1, 2020. The Patient lived with her husband, [ ], and he was present in the home during all four visits that the Member made to their home.

The Patient was receiving care for a wound on her coccyx area that she had developed after a fall and an intravenous antibiotic related to this wound.

It was alleged that the Member engaged in touching of a sexual nature of the Patient that involved inserting his fingers into her vagina without a clinical purpose on January 1, 2020. At the time of the alleged incident, the Member provided medication administration and wound care to the Patient. The Member had made three previous visits to the Patient on December 29, 30 and 31, 2019 with a trainee. On the January 1, 2020 visit the Member attended by himself because the trainee had the day off. The VON and the Southwest Local Health Integration Network (“SWLHIN”) completed investigations at the time of the alleged incident and no findings were made to substantiate the allegations.

The Patient gave testimony that the acts of sexual touching occurred. The Member provided testimony that no touching of a sexual nature occurred.

Since all three allegations in the Notice of Hearing related to a single incident on January 1, 2020, the issues for the Panel to examine were:

• Did touching of a sexual nature occur on January 1, 2020, while the Member provided care to the Patient?

• Would this alleged act amount to sexual abuse of the Patient?

• Would the alleged act contravene a standard of the profession? and

• Would members of the profession regard the alleged conduct as disgraceful, dishonourable and unprofessional?

After much deliberation, careful review and consideration of the evidence and submissions provided, the Panel could not find that the College had met its burden to prove any of its allegations against the Member.

The Evidence

Assessment of credibility is a key part of the Panel’s function. The Panel approached the issue of credibility using the factors identified in Re Pitts and Director of Family Benefits Branch of the Ministry of Community and Social Services (1985) 51 O.R. (2d) 532 (H.C.J.). The Panel considered the following:

• The appearance and demeanour of the witness;

• The witness’s opportunity to observe the matters about which they testify;

• The witness’s capacity to remember the events to which they testified;

• The probability or reasonability of the evidence;

• The inconsistency of a witness’s evidence;

• The external consistency of the evidence (whether the witness’s information is consistent with other evidence provided in the case); and

• Whether the witness had an interest in the outcome of the case or some other reason to be partial to one side or another.

The Panel’s assessment of the credibility of the key witnesses is contained in the evaluation of the evidence and reasons for decisions below.

The Panel heard from 5 witnesses, including the Member and the Patient, and considered 2 exhibits, one of which was a Book of Documents that contained a number of documents, including the College’s Reporting Form, the College’s Self-Reporting Form and accompanying statement, a witness statement, the Member’s diagram of the position of the Patient while care was provided and where the wound was on her body, the VON Procura Production Report, the College’s correspondence to the Member and the College’s Practice Standard Therapeutic Nurse-Client Relationship.

The Panel had the benefit of transcripts for much of the evidence that was given orally. The Panel carefully reviewed these transcripts and the Panel’s notes from the hearing. The following summary contains the points that the Panel found to be most significant.

Witness #1 – [ ] (“[Witness 1]”), VON, Manager

[Witness 1] was one of the Managers at the VON in December 2019 and January 2020. [Witness 1] started at the VON in September 2019 and remained with it until January 2022. [Witness 1] was accountable for hiring, coaching, terminating employment, scheduling staff and ensuring the clients received adequate care. He would occasionally shadow nurses during their shifts to assess how they were doing in providing care to the clients. [Witness 1] was responsible for onboarding new clients and scheduling the nurses to visit the clients in London Middlesex and Elgin Counties. [Witness 1] explained to the Panel some of the types of care that the VON might provide in a client’s home, such as wound care, medication administration and management, wellness checks and insulin administration to children. [Witness 1] recalled the Member and testified about the Member’s nursing ability, indicating that the Member was very thorough, had good documentation and would ask questions when necessary. [Witness 1] offered to the Panel that he was an ex-marine, and they use a term called “screwed on” which means the person has a handle on what they are doing and doing it well. [Witness 1] indicated the Member was “screwed on”.

[Witness 1] testified regarding the College’s report and how he was involved in the joint investigation of the Member with the SWLHIN that concluded with no findings being made against the Member and no restrictions being placed on his practice. [Witness 1] testified that the VON followed up with 30 female clients that the Member had recently cared for. The managers who called the 30 clients used a script to ensure consistency and did not provide any name of who they were calling about. The clients were told the call was a follow up to the care they received. The VON did not receive any concerning information from clients from these calls.

[Witness 1] testified that the Member was monitored for an additional three months after the investigation concluded without the Member knowing. [Witness 1] testified that the VON reached out to all of the Member’s clients asking about the care they received. No one reported anything unusual; several clients gave reasonably good reviews of the Member’s care.

[Witness 1] testified that he spoke with [the Patient’s husband] on January 6, 2020, before knowing about the alleged incident in a follow up call when he learned the Patient was back in the hospital, and that the call was cordial and polite.

[Witness 1] testified about the documentation in the VON Procura Production Report, the VON documentation system. There was documentation from January 2, 2020, in Procura documented as a check in call. [Witness 1] testified that whenever the VON gets a new client, they always do a call within 7 days to check in. There were no concerns documented from this call. There were three notes documented in Procura on January 3, 2020; one at 11:24 hours and it was documented by [Nurse A] (“[ ]”) that the Patient requests that the second back door at the Patient’s house be used during VON visits; another at 20:32 hours where [Nurse B] documented that he called the Patient to answer a question and lastly at 21:02 hours when [Nurse A] noted that the dressing change frequency was increased to once daily.

Cross-Examination

Under cross-examination by the Member, [Witness 1] confirmed that there had been no previous complaints about the Member and the Member was not aware of [Witness 1] monitoring the Member after the internal investigation.

[Witness 1] testified about the safety concerns that a home care nurse may experience. These include going into homes that drug dealers can frequent and having dogs, cats, bugs, and clients under the influence of substances. [Witness 1] testified that the VON encourages the buddy system between staff to ensure that it is as safe as possible. [Witness 1] testified that he is a Nurse Practitioner student now practicing in a clinic and that he is at risk with female clients. It is not allowed for a male healthcare provider to be alone with a female client for any type of obstetric procedure. A neutral party must be in attendance. [Witness 1] testified that the VON tries to have a female nurse care for a female client if the client requires care in a sensitive area, but it was not always possible due to staffing and scheduling.

The Member asked [Witness 1] how he found out the Patient was in the hospital on January 6, 2020, to which [Witness 1] responded that it is usual practice when a client is admitted into the hospital, that a care coordinator from the hospital will inform the VON.

The Panel found [Witness 1]’s testimony credible as he was able to assess the Member’s care, remained consistent with his answers on cross-examination and had no interest in the outcome of the hearing.

Witness #2 - [ ] (“The Patient”)

The Patient testified that she was 56 years of age in December 2019 - January 2020. The Member had provided her care in her home for a pressure ulcer that she had surgery on which required packing as well as intravenous antibiotics. The Patient testified that the first time she received home care from the VON was between December 2019 to January 2020.

College Counsel questioned the Patient as to when she first contacted the VON. The Patient testified that she did not speak with the VON directly as it was all set up by the coordinator while she was admitted to the hospital.

The Patient testified that December 29, 2019 was the Member’s first visit and a student accompanied him. The Patient testified that she was told that the additional person with the Member was a student.

The Patient testified that during the first visit with the Member, her husband was present but was doing something else in the kitchen and that the care was always provided on the couch located in the living room. When College Counsel questioned whether the Patient's husband could see the couch from the kitchen, the Patient testified that if he were at the sink or stove he would not be able to see as it is not an open concept.

The Member testified that during the VON visits she was required to lie on her stomach on the couch for the dressing to be done. The Patient further testified that she needed to lower her pyjama pants low enough for the Member to get access to the areas where the dressing was.

The Patient testified that the Member’s visits to her home took place four days in a row. When College Counsel asked the Patient if she recalled the second visit she responded “vaguely”. When asked if anything was different on either the second or third visit from the Member, the Patient testified that the Member commented on her silky pyjamas and how easily they would come off. The Patient indicated that she took offence to this comment by the Member. The Patient testified that the Member did not make any further comments "as he was more interested in watching the television”. The Patient testified that she could not recall which visit the Member made the comments about the silky pyjamas but testified that another person also attended the visit. College Counsel informed the Patient that the other person was nurse [Witness 3] (“[ ]“).

Alleged Incident

The Patient testified that the Member attended her home alone on January 1, 2020. The Patient testified that the Member had given his “partner” the night off. The Patient testified that her husband was always in the home when the Member came to provide care, as they had animals that needed to be put away before the Member arrived. When College Counsel asked the Patient to describe the visit on January 1, 2020, she testified that she was lying on her belly, and the Member "took off the dressing, pulled the packing out, cleaned it out, and packed it back up". The Patient further testified that the Member had completed the dressing on the back end, and then she felt his fingers going into her vagina three times. The Patient testified that she "froze" and did not immediately say anything to her husband.

The Patient was asked by College Counsel how certain she was about what she felt. The Patient testified that she was “one hundred percent sure as can tell a finger from a Q-tip".

The Patient testified that within five minutes of the incident the Member commented on his way out to her husband that the Patient was very quiet.

The Patient testified that she informed her husband about what had happened approximately ten minutes after the Member left. The Patient testified that her husband found her crying and asked her why she was crying. The Patient testified that this is when she told her husband about the Member inserting his fingers into her vagina. The Patient testified her husband became very angry and stated, “that’s it, we do not want him brought back to the house.”

College Counsel asked the Patient if she had told anyone else about the incident. The Patient testified that she disclosed the incident to a hospital Social Worker one week later when she was admitted to the hospital. The Patient testified that she did not call the VON to report the incident, and that she only told the female nurse who came to visit her the day after the incident that the Patient did not want the Member returning.

College Counsel asked the Patient if anyone from the VON called her after she disclosed the incident at the hospital to the Social Worker and the Patient testified no.

The Patient was shown a diagram (Exhibit # 2) that the Member had drawn depicting the Patient lying on her stomach on the couch while changing the dressing and the location of the wound on her body. The Patient testified that she agreed that the drawing made by the Member of the Patient's wound location was accurate.

College Counsel asked the Patient if she recalled going to the emergency department on December 29, 2019 as this was documented in the VON Procura system (Exhibit # 2). College Counsel showed the Patient written documentation by the Member in Procura stating “client needing to return to the hospital”. The Patient testified that she did not recall going to the emergency department, that this was in 2020 and that she had a lot go wrong with her at the time and she just does not remember.

Cross-Examination

As the Member was self-represented, the Patient was cross-examined by legal counsel, Elyse Sunshine (“Ms. Sunshine”). Ms. Sunshine was appointed as the amicus curiae to conduct the cross-examination. However, she did not legally represent the Member.

Under cross-examination, the Patient testified that at the time of the incident she did not use a walker for ambulation as she only started using a walker in October when she fractured her pelvis. She could walk short distances during the alleged incident and she could get to the couch from her chair when the Member came to provide wound care. Ms. Sunshine asked the Patient for her height and weight, to which the Patient responded she was five feet seven inches and two hundred and fifty pounds.

The Patient was asked if she was wearing pants that were a “little bit tighter fitting” and a “little bit harder” to pull down. The Patient denied that these statements were accurate.

Ms. Sunshine then asked the Patient if the nurses recalled her pants being tighter would they be wrong. The Patient testified, "they would be wrong."

The Patient was asked if she recalled if the Member advised that wearing "something with drawstrings" would be easier. The Patient responded that he would be incorrect in that recall.

Ms. Sunshine spoke to the Patient about her wound dressing and care provided by VON. The Patient testified that as she had no feeling in her backside, she could not feel the wound being flushed with saline, and she could not feel the packing being inserted or being removed due to her being prescribed strong medication. The Patient testified that she would only know what was happening when the nurses told her, "Okay, we're going to pack you".

Ms. Sunshine asked the Patient how she transferred off the couch, pulled up her pants and transferred back to the chair. The Patient testified, “they [nurses] would have to help me off it, but they [nurses] didn't have to help me on it”. The Patient testified that she was able to pull up her own pants and was able to get herself back to the chair.

The Patient then confirmed her previous testimony to Ms. Sunshine that [Witness 3] completed the dressing on the first day of the VON visits. The Patient testified that the Member had explained to [Witness 3] and the Patient how to complete the dressing. Ms. Sunshine questioned the Patient about the Member’s comment regarding her pants being easier to take off. She asked the Patient if it would be fair to say the Member commented simply recognizing how difficult it might have been to lower her pants. The Patient testified “no, it would not”. The Patient further testified that the Member commented to her that “they’re nice pants you can really take them off”.

Ms. Sunshine questioned the Patient about the information that she provided to the College, regarding the pyjamas. Ms. Sunshine asked the Patient whether she recalled telling the College investigator that she told the Member that her husband bought them (pyjamas) because they were easy to go on and off. The Patient responded, “never said that”. The Patient testified that she purchased the pyjamas, and it “made sense to wear pants that were easier to lower for the treatment “and that she was the one who always lowered her pants without assistance.

Ms. Sunshine questioned the Patient about who completed the dressing on December 29, 2019, December 30, 2019, and December 31, 2019. The Patient testified that [Witness 3] did the dressing these days as the Member was watching the television or making personal calls on his phone during this time.

Ms. Sunshine challenged the Patient asking if the Member and [Witness 3] would recall this and could it be one or the other communicating with her during the wound care. The Patient responded “no”.

Ms. Sunshine continued the questioning and clarification in regard to the wound dressing change completed by the Member. The Patient reaffirmed that she had no feeling at the wounds location and that her buttocks would need to be spread for the dressing change due to its placement on her body. The Patient testified that in fact she knew her buttocks were being pulled apart because she could feel it and described it as painful.

Ms. Sunshine moved the questioning to the day of January 1, 2020, to cross examine the evidence provided about the day of the alleged incident and details.

The Patient testified that the Member came by himself on January 1, 2020, and the Patient did not feel uncomfortable about this as her husband was in the house just as he was during the last three visits by the Member. The Patient testified that she lowered her own pants and when questioned by Ms. Sunshine about how her pants were lowered, she testified they were lowered just below her buttocks, but the “front remained up covering her vagina”. The Patient testified and confirmed her position on the couch was the same, she was lying on her belly, legs together and that the dressing change was uneventful until at the end of the dressing change when the Member inserted his finger into her vagina.

Ms. Sunshine challenged the Patient that in her position lying on her stomach on the couch would it not be difficult for the Member to get to the vagina, to which the Patient testified “yeah, it was because I was laying on my stomach”. The Patient was asked to explain in more detail what happened. The Patient testified that the Member's palm was down, and he went under her and stuck his fingers in her vagina three times. The Patient testified that the Member did not say anything to her while he was doing this. The Patient reiterated that the Member inserted a finger not a Q-Tip.

Ms. Sunshine questioned the Patient about the call from the VON on either January 2, 2020 or January 3, 2020. The Patient testified that she did not recall receiving a call.

Ms. Sunshine took the Patient to January 3, 2020, when [Nurse A] a Registered Nurse from the VON came to provide care to her. The Patient testified that she did not remember the nurse’s name from January 3, 2020. She did recall that she had not mentioned the alleged incident to anyone, or said anything to anyone until [Nurse A] came into her home on January 3, 2020, when she told [Nurse A] that she did not like the way the Member spoke with the student, [Witness 3], “at times he was very sharp to her, rude and demanding”. The Patient confirmed that she told [Nurse A] that the Member should not be training anyone because “he did not have the patience, and felt the student was upset by the interactions.”

Ms. Sunshine then challenged the Patient and asked her about the discussions with the College and asked if she told the College that the Member was “okay” with his student. The Patient testified “no I didn’t”. When the Patient was asked if the College investigator got it wrong the Patient responded “yeah”.

When the Patient was questioned about the decision made by the Member to decrease the dressing change frequency, the Patient confirmed that she did not feel it was up to the Member to make that decision and was not happy about it.

Ms. Sunshine confirmed with the Patient that after the visit with [Nurse A], the Patient was admitted to the hospital. Ms. Sunshine challenged the Patient regarding the telephone calls that were made after she was admitted into the hospital. The Patient testified that she told her husband to call the Member to tell him that she was in the hospital and not to come. Ms. Sunshine inquired with the Patient if this was asked because the Patient understood she was going to see the Member again and wanted him to know that she was not going to be at home to which the Patient testified in response “no, because after that I think I do believe I phoned, I phoned the VON to tell them that we no longer wanted their service.”

Ms. Sunshine asked the Patient “then why did your husband need to call the Member”, to which the Patient responded, “he didn’t want him at the house”. The Patient then testified that she did not recall her husband calling the Member as “there would have been no sense...No, he didn’t call him”.

When Ms. Sunshine challenged the Patient with the evidence that [Witness 3] and the Member both recalled that the Patient’s husband called the Member on January 5, 2020, the Patient responded that she did not know “why we keep dwelling on this. This isn’t what we’re here for. We’re here for what he did to me”.

Ms. Sunshine reviewed with the Patient that the chronology of events was important for the Panel to be able to assess what happened.

Ms. Sunshine asked the Patient if there was any other conduct by the Member that the Patient considered sexual in nature. The Patient testified that the Member would stand in front of her so she would have to “look at his privates” and the Member had “draw strings hanging down”. Ms. Sunshine challenged the Patient regarding “draw strings hanging down” being sexual in nature. The Patient testified “well kind of in my thought, and standing there and when I had to look, I had to look at his front end”. Ms. Sunshine confirmed with the Patient that the Member was in front of her while providing treatment.

Ms. Sunshine asked the Patient whether, [Witness 3] would be lying or mistaken if she were to testify that it would not have been anatomically or physically possible for the Member to put his finger into the Patient’s vagina while the wound care was being provided. The Patient testified that [Witness 3] would be lying.

Re-examination

Under re-examination, College Counsel asked the Patient if on January 2, 2020, the VON spoke with the Patient’s husband rather than the Patient. The Patient testified “no, they didn’t”.

There were several inconsistencies in the Patient’s testimony, the nature and impact of which will be described further below.

Witness #3 - [ ] (“[Witness 3]”)

[Witness 3] testified that she has been a Registered Nurse since having graduated from the University of Western Ontario in 2019. [Witness 3] testified that she is not presently registered with the College as her licence was expired due to nonpayment. [Witness 3] testified that she began working for the VON in November 2019. Her primary focus was on community nursing, until September 2021.

[Witness 3] testified and confirmed that the Member had been [Witness 3]’s preceptor. [Witness 3] had been hired by the VON under a program called Health Force Ontario. [Witness 3] testified that she was a recent graduate and this program provided her with the opportunity for orientation and training under a Registered Nurse for four months. [Witness 3] testified that she would work alongside the Member, attending home visits with him for these four months and providing care with the Member to each client. [Witness 3] testified that she started with the Member in November 2019 and completed most of her training with the Member.

College Counsel questioned [Witness 3] on her opinion of the Member. [Witness 3] testified to the following:

• He was a great nurse;

• He was a great teacher, intelligent and patient with his teaching;

• He was very patient with clients;

• He made her feel comfortable with the clients;

• He treated her with respect and never dismissed her; and

• She never saw the Member engage in any inappropriate behaviour towards clients, nor had she any concerns with the way he behaved with her.

College Counsel questioned [Witness 3] about what she could recall about the visits to the Patient on December 29, 2019, December 30, 2019 and December 31, 2019. [Witness 3] testified that:

• [Witness 3] recalled the visits;

• [Witness 3] and the Member were asked to admit the Patient post - hospital which meant the VON was seeing the Patient for the first time in the community;

• The Patient’s husband was present when they arrived on December 29, 2019;

• The Patient and her husband had differing answers when asked what prompted the stay in the hospital;

• Consent was obtained and treatment started;

• There was an issue with the Patient’s PICC line, and the Patient had to go to the hospital to have it assessed;

• [Witness 3] and the Member assisted the Patient to the couch, as the Patient used a walker; and assisted the Patient with getting her pants down. [Witness 3] testified that the pants were pulled down to the Patient’s hamstring area but “up in the front”;

• The Member did the wound change on December 29, 2019, and [Witness 3] assisted;

• From where the dressing was being completed, [Witness 3] could see the entire kitchen as there was an archway but no door;

• [Witness 3] completed the wound care on December 30, 2019;

• When wound care was being provided both [Witness 3] and the Member were on the same side of the Patient; the one providing wound care was at the torso and the other assisting was at the legs of the Patient;

• On December 31, 2019, the wound dressing change and home visit occurred around the same time of day as the first and second visits. [Witness 3] noted nothing different in the care on the third visit;

• The Member completed the wound care on the third visit;

• [Witness 3] recalled the Member mentioning to the Patient that it would be helpful to wear something loose so it would be easy to get the Patient’s pants off;

• [Witness 3] confirmed that she was not in attendance on the January 1, 2020 visit as she had requested the day off;

• When [Witness 3] and the Member received their client list for their next set of shifts on January 4, 2020, they were both surprised that the Patient was not on the list for them to visit;

• [Witness 3] was present in the car with the Member when he received the voicemail message from the Patient’s husband stating that the Patient was in the hospital, and they would not need to make a visit to the Patient’s home;

• It would have been difficult for the alleged incident to occur, just based on the position of the Patient when the Patient was lying on the couch;

• When providing wound care, [Witness 3] and the Member had to spread the Patient’s butt cheeks to get everything out of the way to see the Patient’s wound. The Patient’s legs were shut;

• In her opinion the alleged incident would be impossible, based on her clinical expertise and her perspective of the Member’s character. When asked about limiting her testimony to physical considerations only [Witness 3] responded it was possible that the Member could have inserted his finger into the Patient’s vagina.

College Counsel directed [Witness 3] to her statement of events document found in the Book of Documents (Exhibit #2). [Witness 3] testified that she created this document after being told about the allegations against the Member. [Witness 3] testified that she created it for her manager before February 19, 2020.

[Witness 3] testified that she reviewed her statement prior to testifying before the hearing but confirmed that she had an independent memory of the events. [Witness 3] testified that she reviewed her statement prior to testifying to refresh her memory.

College Counsel inquired whether [Witness 3] excluded any information from her statement that might not be helpful to the Member, [Witness 3] responded “no”.

[Witness 3] testified that the Member’s drawing of the Patient’s wound and how the Patient was lying on the couch for the dressing changes was accurate.

Cross-Examination

Under cross-examination by the Member, [Witness 3] was asked about what the Patient was wearing on the first visit. [Witness 3] testified that the Patient was wearing pyjamas and “it was a little bit of a struggle to get them down”. The Member asked [Witness 3] if she thought it would have been helpful with the Patient’s care if the Patient was wearing looser pants. [Witness 3] testified that it would but had no recollection whether the Patient wore looser pants on the subsequent visits.

The Member questioned [Witness 3] about the condition of the Patient’s home, in particular, where they placed their nursing supplies when providing wound care to the Patient. [Witness 3] testified that the Patient’s house was cluttered and that they would place their wound care supplies on either the Patient’s walker or the coffee table.

It was [Witness 3]’s testimony that the Member spoke to the Patient while providing wound care to make sure she was comfortable and understood what was happening. [Witness 3] denied that the Member was watching the television while she was providing care to the Patient. [Witness 3] testified that the Member was either assisting with the wound care or watching her complete it.

The Member informed [Witness 3] that the Patient had testified that she did not have a walker. [Witness 3] testified that she remembered using the Patient’s walker to put “stuff” on it and recalled having to assist the Patient from “getting out of her reclining chair as it was difficult for her to get up herself”. [Witness 3] testified that the Patient’s gait was unstable, and the Patient had verbalized she was afraid of falling again.

Further cross-examination by the Member lead to [Witness 3] testifying that:

• She did not find drawstrings on the scrubs sexually suggestive and that she also had drawstrings on her scrubs;

• The Member looked professional when she worked with him;

• The Patient’s body covered the width of the couch and her hip-to-hip measurement was probably 60 centimetres in diameter;

• Obstacles that would be in the way if the Member wanted to insert a finger into the Patient’s vagina would be the position the Patient was on the couch, that the Patient’s thighs were touching, skinfolds from the Patient’s legs touching her buttocks and [Witness 3] had to use her muscles to separate the butt cheeks and hold them open;

• The voicemail from the Patient’s husband stated, “Hey buddy. Don’t worry about coming to visit [the Patient]. She’s been admitted to the hospital.” The Patient’s husband was not quite certain how to explain what had happened. He thanked the Member and told the Member not to worry and said he would talk to him later. The Member called the Patient’s husband back and left a voicemail saying he was sorry to hear the news and hoped the Patient was okay. This call occurred on the week the Member and [Witness 3] returned following New Years Day.

Re-examination

College Counsel clarified on re-examination of [Witness 3] what day she worked with the Member after January 1, 2020, to which [Witness 3] responded January 5, 2020.

A Panel Member asked [Witness 3] whether at any time the Patient was wearing underwear. [Witness 3] responded that the Patient was wearing a brief.

The Panel found [Witness 3]’s testimony to be credible as she was in a position to assess the Member’s care and character for 8 weeks prior to the alleged incident. She remained consistent with her answers in cross-examination, took time to answer the questions being put to her and had no interest in the outcome of the hearing.

Witness # 4 – The Patient’s Husband (“[Witness 4]”)

[Witness 4] testified that this was the Patient’s first experience with the VON. [Witness 4] testified that the Patient developed a serious infection as a result of a fall she had in the laundry room. [Witness 4] testified and confirmed that he was present for the first VON visit and that the Member came with another individual. [Witness 4] was unable to recall this person’s position with the VON. [Witness 4] testified as to the layout of his house and that he could see part of the living room when he was in the kitchen, but testified that it depended on his position in the kitchen.

[Witness 4] testified he did not recall how many visits the Member made to their home stating "it could be ten. It could be two. I have no idea. I can’t remember”.

[Witness 4] provided some testimony demonstrating some recall about taking the Patient to the hospital after the Member’s first visit for her PICC line and testified that nothing stuck out about the first visit.

[Witness 4] was questioned by College Counsel about the day the alleged incident occurred. [Witness 4] testified that he was completing the dishes when he heard the Member was leaving. The Member commented about the Patient being quiet. After the Member left, [Witness 4] noticed the Patient was upset and asked her what the matter was. She told him that the Member sexually assaulted her by putting his finger inside of her. [Witness 4] testified that the Member had already left their driveway. He then sat with the Patient and hugged her.

[Witness 4] testified that he questioned the Patient if she was sure, and she responded “Oh yeah. Yes. I know the difference”.

[Witness 4] testified that he did not tell anyone and told the Patient that he would leave it up to her to tell whoever she wanted.

College Counsel questioned [Witness 4] about his communication with the VON after the alleged incident and he testified that:

• He spoke with someone at the VON the next day or a couple of days after the alleged incident to tell them the Patient was missing some supplies and to tell them they did not want the Member as their nurse anymore;

• He had no recall if he called the VON to inform them that the Patient had gone to the hospital; and

• He did not recall calling the Member a few days after the incident. He wanted to, but the Patient would not let him.

College Counsel informed [Witness 4] that [Witness 3] testified that she heard a voicemail message from him on around January 5, 2020, indicating that the Member or [Witness 3] did not need to come for a visit because the Patient was in the hospital. When asked if he remembered that, [Witness 4] testified “I do. I remember calling him because she was in the hospital, so they didn’t have to come and show up, but I am not sure a hundred percent if it was [the Member] I called or whether it was the office”.

Cross-Examination

On cross-examination, the Member asked [Witness 4] about the layout of his house as he had indicated that his daughter was upstairs, but the Patient had testified it was a one-story home. [Witness 4] testified there had always been two rooms upstairs since it was built.

The Member asked [Witness 4] about any previous VON care. [Witness 4] went on to say they had previous VON care when the Patient had an endoscopy, breast cancer and rectum cancer.

The Member asked [Witness 4] about how long the Patient had had a walker. He testified that the Patient had her walker for over five years. When the Member told [Witness 4] that the Patient testified that she did not have a walker at the time of the incident, [Witness 4] responded that “she was mistaken” and “she used it a lot as she even needed help getting out of her chair about ninety percent of the time even with it being able to be raised”.

The Member questioned [Witness 4] on him calling the Member “Buddy”, [Witness 4] testified that he only called his good friends “Buddy”. [Witness 4] testified that he was nervous, so he was using the term. The Member asked [Witness 4] if he recalled calling the Member “Buddy” when he came to the home the first few days to which [Witness 4] testified “no”.

The Member asked [Witness 4] about how upset he was after the Patient told him about the allegations. [Witness 4] testified his temper meter went from zero to fifty on a scale of zero to ten. When asked how long he remained agitated or angry [Witness 4] testified it was up to last year, but he still got “pissed off” occasionally when he thought about it.

The Member informed [Witness 4] that the Manager of the VON testified that he spoke with [Witness 4] on January 6, 2020. The Member asked [Witness 4] if he recalled receiving a call from [Witness 1] on January 6, 2020. [Witness 4] responded, “I don’t remember who it was I talked to when I called there”. The Member went on to question [Witness 4] on who he called about the Patient being admitted into the hospital and [Witness 4] was clear in his response that he could not remember who he called or who he spoke with at that time.

When the Member asked [Witness 4] if he recalled his interviews with the College, [Witness 4] testified that he did recall the College calling him but did not recall any of the dates. Even when the Member provided the dates of March 26, 2021 and November 25, 2022, as documented in the evidence, [Witness 4] could not recall any specifics.

When the Member asked [Witness 4] if he recalled calling the Member and leaving a voicemail on January 5, 2020, [Witness 4] testified that he did not remember but probably did call. The Member questioned [Witness 4] about his statement to the College interviewer that [Witness 4] remembered calling the Member to let him know that his visit would not be required that day. [Witness 4] testified that he agreed with that statement documented in the College interview notes.

The Member challenged [Witness 4]’s testimony in regard to his phone calls to the VON about the Member's visits to the Patient. [Witness 4] testified that he was unable to recall events “as it was a couple of years back”.

The Panel had concerns with [Witness 4]’s testimony as it identified inconsistencies with other witness statements and within his own evidence. These concerns will be described in more detail below.

Witness #5 – The Member

The Member testified that he was born in Columbia but moved to Canada with his family around 2002. The Member went to the University of Western Ontario initially in the Health Studies Program before transferring into the compressed Nursing Program. The Member testified that it was a fast-track program requiring the completion of the Nursing Degree within 19 months. Before writing the examination for his nursing license, the Member worked as a PSW for the VON in June 2018. As a PSW, the Member had a full case load and would assist clients in their homes with activities of daily living, check-up visits, physiotherapy exercises and warming up meals. After passing his nursing license examination, the Member was hired by the VON in January 2019, and started to work there in February 2019. The Member’s initial registration with the College was December 21, 2018. The Member resigned from the VON in October 2021 and during the time of the hearing the Member was residing in Poland and was listed in the non-practicing class with the College as of February 4, 2022.

The Member testified that he had been practicing nursing for 10-11 months at the time he started to visit the Patient. On the first visit to the Patient, the Member testified that he would have gone through her health history and asked her what her preferences were. During the initial visits, the Member testified that there was a concern with the Patient’s PICC line and it was suggested that the Patient go to the emergency room for assessment. During his visits, the Member was responsible for the Patient’s PICC Line, IV Therapy and wound dressing to her coccyx. During the completion of the Patient’s wound care, the Member testified that the Patient stated to him “do not get too close to the wrong end”, and the Member reassured the Patient that the Member or [Witness 3] would not get close to any of her private areas or her anus.

The Member confirmed through testimony that the Member and [Witness 3] would complete the same dressing changes on the subsequent dates, and that the Patient’s husband was always present and would be there at the beginning of the visit to say hello.

The Member testified that [Witness 3] provided the wound care on the second day, and that the Member was there to assist in opening of the Patient’s buttocks as [Witness 3] had done for him. The Member completed the wound care on the third visit.

The Member confirmed previous testimony from both [Witness 3] and the Patient that the Patient’s legs were closed during the dressing changes. They had to be as there was no room available on the couch for any other position. The Member testified that he never visualized the Patient’s vagina during these dressing changes due to her legs being closed and the skin folds from her legs touching the buttocks.

The Member testified that he recalled making comments to the Patient about her pyjamas on the second visit. The Member testified that the purpose of the comments was to allow the Patient to have items of clothing that were easier to work with, as at the first visit it was difficult to lower her pants. The Member went on to testify that he would only expose what was needed and would not expose a client unnecessarily. The Member recalled he made the similar type of comment regarding wearing looser clothing on one other occasion when caring for a male patient who was wearing jeans and needed a wound dressing change on his leg.

The Member testified that on January 1, 2020, he did attend the Patient’s home alone as [Witness 3] had the day off. The Member testified that at this visit to the Patient the sequence of events that occurred were:

• The Member took the dressing off the wound;

• While packing the wound the Member noticed a white area in the wound, so he took a cotton tip applicator and put it into the wound;

• The Member touched the white area in the wound with the applicator and assessed that it may have been bone. The Member did not experience any reaction from the Patient. When the Member retouched the white area again to double check, there was still no reaction from the Patient;

• The Member proceeded with packing the wound;

• The Member called [Witness 4] in as the wound care was completed, and the Member wanted to watch the husband start the Patient’s medication;

• The Member assisted the Patient back into her chair and watched [Witness 4] start the medication;

• The Member explained that the dressing change frequency was going to be decreased as the drainage had decreased and that this would also reduce the frequency for the Patient to move from the chair to the couch daily, but that the frequency could be increased again if needed; and

• The Member said goodbye, to which both the Patient and [Witness 4] said goodbye back.

The Member testified that when he and [Witness 3] were together on January 8, 2020, he listened to a voicemail message from [Witness 4] that stated, “hey buddy, I just wanted to let you know that [the Patient] is in the hospital and you won’t need to come down today". The Member testified that the date of the voicemail was from January 5, 2020.

The Member testified that he was shocked when he first heard about the alleged incident. The Member spoke with his manager and then completed a self-report form to the College. After the VON investigation the Member testified that he was informed that they did not find anything and there was no reason to restrict his care, but that he would be monitored.

Cross-Examination

On cross-examination College Counsel questioned the Member about the power imbalance between a client and a nurse. The Member agreed that there was inherent power imbalance. College Counsel submitted that asking a client if the Member could take a personal call when the client was in a vulnerable position, might make a client inclined to say it was fine when in fact, they preferred that the Member did not take the call. College Counsel went on to ask the Member if he agreed that the Patient had complained about a few things that he did in the course of his visits that the Member did not think were problematic. The Member testified that it was possible depending on how the Patient perceived his comments.

College Counsel challenged the Member to provide evidence to his statement that the Patient’s husband was making false allegations. College Counsel asked the Member if he was comparing [Witness 4]’s response to how he thought [Witness 4] should have behaved after the Patient told him she was inappropriately touched by the Member during care. The Member testified to the following in response to College Counsel’s question:

• The evidence that [Witness 1] provided in regard to his check in call conversation with [Witness 4] on January 6, 2020, was that [Witness 4] did not mention any concerns or the incident that is alleged to have occurred on January 1, 2020;

• The notes documented in Procura on January 2, 2020 and January 3, 2020, when communication with the Patient’s household took place, had nothing documented about concerns with care provided by the Member nor anything stating the Member was not to return to the home; and

• In the voicemail message left for the Member telling him he did not need to come to the house as the Patient was in the hospital, [Witness 4] had a friendly tone, called him “buddy” and thanked the Member for his care.

The Member testified that the behaviour of [Witness 4] was not consistent with someone aware of the alleged allegations. The Member stated that both the Patient and [Witness 4] gave testimony that it did not make sense that either one of them would call the Member after the Patient disclosed the alleged allegations to [Witness 4] when the Member left their house on January 1, 2020.

The Panel found the Member’s testimony to be credible. His responses were consistent with other witness testimony. He completed a self-report form quickly after hearing there were concerns of his care. The Member took the allegations seriously and came well prepared to the hearing. The Panel did not find any internal inconsistencies with the Member’s testimony even during cross-examination.

College Counsel’s Final Submissions

College Counsel submitted that the Panel’s central task was to assess the witnesses as the evidence laid out was not in dispute except the one act of the alleged sexual touching. The College bears the burden of proof, not the Member so if the Panel had any doubt that would benefit the Member. The Notice of Hearing sets out what is to be proven and all three allegations involved the same act of the Member inserting his finger into the Patient’s vagina. There is no dispute that if it occurred, it would constitute professional misconduct. The Panel heard from [Witness 1], the Member’s Manager that there was no clinical purpose for this act to occur. The Panel was reminded that there were five witnesses, but only two had direct evidence. The other three witnesses provided evidence of context and background which would assist in assessing credibility.

College Counsel submitted the following cases to the Panel to assist and guide their deliberations:

R. v. I.W. (Court of Appeal, 2022): The appellant was charged with sexual assault, sexual interference, uttering a threat to cause death, and sexual exploitation. He pleaded not guilty, but after his trial a jury found him guilty of all three sexual offences. He was found not guilty of the uttering a threat offence. The appellant appealed against the conviction on these three grounds: 1) the trial judge erred by failing to provide a “no probative value” instruction to the jury after the complainant’s outburst; 2) the trial judge erred by permitting the Crown to lead a prior consistence statement, and in not instructing the jury on its limited use; and 3) the trial judge erred by failing to adequately correct the Crown’s misstatement of the facts relating to the timing of the alleged assaults in its closing address to the jury. The appellant lost the appeal.

College Counsel submitted that this case stands for the proposition that repetition does not mean the evidence is more or less likely to be true. [Witness 3] and the Member both referred to their prior statements provided after the alleged incident. The Panel must rely on their sworn evidence and not their prior consistent statements to make findings of fact.

R. v Ignacio (Court of Appeal, 2021): The appellant was charged with sexual assault. The appellant appealed against the conviction on the grounds that the trial judge erred in finding that the complainant had no motive to fabricate, and in considering this as a factor in assessing her credibility. The appeal was dismissed. The appeal court confirmed that the trier of the fact is entitled to consider the absence of evidence of a motive to fabricate as one factor in assessing the complainant’s credibility. The case cautions against placing an improper emphasis on the absence of a motive to fabricate. As well, an absence of a motive to fabricate does not mean that there was not one and an onus cannot be placed on the accused to prove the complainant had a motive to fabricate.

R. v. Steele (Court of Appeal, 2021): This was a case of an appeal of a conviction of sexual assault. The respondent and the complainant knew each other and had been introduced by their parents when they were 23 and 18 years of age. They had both been drinking and while walking home together they came upon an abandoned trailer that they entered. The respondent tried to kiss the complainant, but she said she wanted to go home. The respondent than held the complainant down and penetrated her vaginally and anally. The trial judge was not prepared to believe all of the respondent’s evidence and was left with a reasonable doubt so the accused was acquitted. The appeal was allowed due to an error in law applied by the trial judge by applying an irrelevant stereotypical view of behaviour of sexual assault victims under the guise of a common-sense approach to credibility assessment.

College of Chiropractors of Ontario v. Kovacs (Divisional Court, 2004): This was a case from the College of Chiropractors of Ontario that had gone to appeal after a dismissal of sexual assault allegations. The decision of the Discipline Committee was not unanimous. The two-person majority concluded that the College had not proven its case and stated that a third member of the panel agreed with the result, but passed away before the reasons were written. The majority stated that the case turned on an assessment of the relative credibility of the complainant and respondent. The appellate court concluded there was a series of errors by the majority in considering the evidence and assessing credibility leading to the conclusion that the decision was unreasonable and overturned the decision. Rather than focusing on the testimony of the parties before them, the majority appeared to have used myths and stereotypes about sexual assault victims and perpetrators which influenced their decision.

College Counsel also reviewed the text: Steinecke’s Complete Guide: Decisions and Reasons, pointing out that the credibility of a witness equals honesty and reliability. College Counsel asserted that the Panel must explain why it found a witness to be credible or not using one or more of the following:

• Appearance or demeanour;

• Ability to perceive;

• Ability to recall;

• Motivation;

• Probability or plausibility;

• Internal consistency; and

• External consistency.

College Counsel submitted to the Panel the importance of reviewing the evidence put forward and that, if there are inconsistences in the evidence, to consider the following: how does it affect the witness’ credibility? What is the evidence inconsistent with? Is the evidence pertinent?

College Counsel submitted that some of the Member’s evidence included the Patient’s motivation to fabricate the allegations. College Counsel submitted that the Member identified reasons why the Patient would be lying. College Counsel submitted an example to the Panel in which it was alleged by the Member that the Patient did not like the fact that the Member had changed her wound dressing schedule. The Patient reported concerns with the care the Member provided. The Patient testified about the Member watching the television and taking a personal phone call. These are examples of a reason to fabricate, but common sense and the testimony of the Patient indicated these concerns were easily addressed when she requested the Member to not return to her home.

College Counsel submitted that the Patient’s evidence was internally consistent and took the Panel to the pages in the transcript, which he presented as the core evidence of the hearing. College Counsel submitted that the Member did not call any evidence to prove the Patient was lying therefore there is a presumption the witness was telling the truth. The Patient testified that she was one hundred percent certain it was a finger inserted into her vagina and was in a position to observe. College Counsel did state that the Patient had a poor memory of dates, and she was uncertain of timing, but this does not undermine her evidence.

The Member’s Final Submissions

The Member submitted that the evidence presented showed that the allegations did not occur. The Member submitted that [Witness 1] provided evidence outlining how nurses are vulnerable in clients’ homes. The Member submitted the Patient gave testimony that she had eight complaints about the Member from the first three visits, therefore he was vulnerable in the Patient’s home. The Member submitted that the Patient testified that her husband was always in the home and in close proximity while the Member provided wound care. The home was not open concept, but there was an archway without a door from the kitchen to the living room.

The Member submitted that the Patient testified that she had the following perceptions of him prior to January 1, 2020:

• The Patient found the Member was disrespectful when he stood in front of her in his scrubs with the drawstrings hanging down. The Member testified that in her view this behaviour was sexual in nature. [Witness 3] had testified that she was also wearing scrubs when in the Patient’s home. The Patient testified she did not recall what [Witness 3] was wearing;

• The Patient testified that she took the Member’s comments about her pyjamas “oh, these pants would come off easy” personally. The Patient testified that since she did not know this man (the Member) she found this comment about her pants very disrespectful;

• The Patient testified that the Member was sharp and demanding with [Witness 3] during the visits to the Patient’s home. The Patient testified that she told [Nurse A] that the Member should not be training anyone as he had no patience. The Patient testified that [Witness 3] was upset by her interactions with the Member, however, [Witness 3] testified that the Member was patient when teaching her and sharing his clinical knowledge;

• The Patient testified that the Member did not explain what was being done while changing her wound dressing. However, in cross-examination, the Patient had conceded that she would be told what was happening with her wound dressing such as, we are going to put the packing in.

• The Patient testified that the Member would just go to their refrigerator and take the medication out. [Witness 4] testified that the medication needed to be taken out of the refrigerator a half an hour before being given, but the first couple of times he forgot so when the Member came to the kitchen and the medication was not out of the refrigerator [Witness 4] would tell him to go ahead and take it out of the refrigerator;

• The Patient testified that the Member would take personal calls while providing care. [Witness 3] testified that the Member made one call to the LHIN asking for a wound specialist consult. The Member testified that he did ask the Patient for permission to step outside to make a personal phone call to his sister and the Patient provided him with her consent to do this; and

• The Patient testified that the Member was watching the television while [Witness 3] completed the dressing change. [Witness 3] testified that the Member was standing beside her while she was doing the wound dressing and assisting her.

The Member submitted that the Patient made no complaints to the VON about his behaviour, and he did not know what was going on in the Patient’s mind. He was not aware that he was offending her.

The Member submitted he maintained his professionalism with the Patient by calling as requested before going to their home, providing safe care when he sent the Patient to the emergency room to have her PICC assessed, provided the supplies needed by the Patient, maintained a sterile field while completing wound dressing, requested to have a wound specialist consulted to provide further treatment options for the wound and empowering the Patient’s husband to be involved by teaching him how to administered the antibiotics.

The Member submitted that the January 1, 2020, home visit was a routine visit. Care was provided, and he left the Patient’s home in a peaceful manner. The alleged allegations did not occur.

The Member submitted to the Panel that it should consider the probability of the alleged incident occurring.

The Member submitted that there were several obstacles that would prevent him from inserting his fingers into the Patient’s vagina such as:

• Size of the Patient’s legs and skin folds;

• The weight of the Patient’s legs;

• [Witness 3]’s testimony on how difficult it was to open the buttocks while providing wound care;

• The Patient’s legs were closed while lying on the couch for wound care;

• The pyjamas were only pulled down at the back of the Patient, but the front was covered; and

• The female anatomy and trying to access the vagina while a patient is lying on their stomach with legs closed.

The Member submitted that the improbability alone is enough to conclude it did not happen.

The Member submitted that the check in calls made with the Patient and/or [Witness 4] after the alleged incident did not record any concerns or them not wanting the Member back to their home in the VON Procura documentation system.

The Member submitted that separate investigations were completed by the VON and the LHIN and they found no evidence that the allegations occurred. The VON even received some praise on the Member’s care.

The Member submitted that if the Patient or [Witness 4] told someone at the VON and/or [Nurse A] on January 3, 2020, that the Patient did not want the Member back in their home, this was not documented in Procura, the VON’s legal documentation system. The Member further submitted that if the Patient told [Witness 4] about the alleged incident on January 1, 2020, why would [Witness 4] leave a voicemail message on the Member’s phone on January 5, 2020, telling him that the Patient was in the hospital and not to come to the home.

The Member concluded by submitting that the inconsistencies in the testimony of the Patient and [Witness 4] affect the credibility of their evidence.

College Counsel’s Submissions in Reply

In reply, College Counsel submitted that the Panel should not assess the witnesses on how they should react as this would be considered stereotyping.

Independent Legal Counsel Advice (“ILC”)

ILC reminded the Panel to make their findings solely on the evidence provided and that the College must discharge the onus of proof on the balance of probabilities based upon clear, cogent and convincing evidence. The Panel was advised to assess the evidence of all witnesses and determine their credibility. The Panel was warned to stay away from making stereotypical assumptions concerning expected behaviour from sexual abuse victims as all responses may be different.

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 is unable to find that the Member has committed acts of professional misconduct as alleged in paragraphs #1, #2 and #3 in the Notice of Hearing. Accordingly, the Panel dismisses all allegations against the Member.

Reasons for Decision

The Panel considered the evidence of each of the witnesses individually and taken together, with attention to their evidence, explanations for any inconsistencies, and the potential impact any inconsistencies would have on their credibility and reliability. The Panel was also cautious not to engage in stereotypical assumptions concerning the expected behaviour of sexual abuse victims.

With regard to [Witness 1]’s testimony, he provided factual context to the allegations while referring to the internal administration of the VON, documentation expectations and the VON and SWLHIN investigation following the incident. [Witness 1] was forthright in examination and cross-examination.

[Witness 3] was in a direct position to testify on the Member’s care, character and care provided to the Patient on December 29-31, 2019. [Witness 3] had spent approximately 8 weeks working alongside the Member providing care to clients in their homes before the alleged incident. She had a good length of time to observe his behaviour around clients and herself. [Witness 3] provided internal and external consistent testimony with other witnesses. [Witness 3] did not have a social relationship outside with the Member nor does she still work with the Member. [Witness 3] was forthright in examination and cross-examination.

The Panel was concerned with the Patient’s testimony as it identified inconsistencies with other witness statements. It could be argued that some of the inconsistencies could be considered minor, however, the totality of the inconsistencies has an impact on the Panel’s assessment on credibility. The Patient was present for all aspect of care provided, but due to her positioning she may not have been able to observe the direct wound care that was being provided. The Patient was honest with College Counsel and the Panel on what she could recall. As stated several times she had been through a lot since 2020 and her recall was not always strong. Being the main complainant, the Patient had an interest in the outcome of the hearing.

Some key inconsistencies found in the Patient’s testimony compared with other witnesses were:

• The Patient testified that the house she was living in was one floor whereas her husband testified they have always had a second floor in this house;

• The Patient testified that she recently started using the walker after fracturing her pelvis, whereas both [Witness 3] and the Member testified that they both used the walker to put supplies on while providing her care and her husband testified that the Patient had been using a walker for over 5 years;

• The Patient testified that this was her first visit from the VON whereas her husband testified that the VON had been out before and identified it was the Patient’s health issues that required the VON’s assistance;

• The Patient testified that she did not wear a brief under her pyjamas whereas [Witness 3] testified that she had a brief on;

• The Patient testified that the Member was watching the television while [Witness 3] was providing care whereas [Witness 3] testified that the Member was either assisting or monitoring the care she was providing to the Patient;

• The Patient testified that the Member stood in front of her so she would be facing his privates with his drawstrings hanging down whereas [Witness 3] testified that the Member needed to be beside her to assist or complete the dressing and that she also had drawstrings on her uniform;

• The Patient testified that the Member was rude and condescending to [Witness 3] whereas [Witness 3] testified that the Member treated her with respect and did not talk down to her;

• The Patient testified that [Witness 3] completed the wound dressing on December 29-31, 2019, whereas [Witness 3] testified that she only completed the wound dressing on December 30, 2019, and the Member completed the wound dressing on the other two days;

• The Patient testified that she told [Nurse A] who came to do her wound dressing on January 3, 2020 that she did not want the Member back to her home whereas [Witness 1] testified there was a note January 3, 2020 in Procura about increasing the visits again, but no documentation from [Nurse A] stating the Patient has requested that the Member not return. There was also a note on January 3, 2020, in Procura stating that the Patient was called to answer a question. [Witness 1] testified that if there were any concerns those concerns would have been documented in Procura and/or he would have been notified directly, which he was not; and

• The Patient testified that she had no feeling at the wound at all and stated that the reason she had no pain or feeling was because she was on heavy medication. Yet she went on to say when cross-examined that when her buttocks were pulled apart it was painful. The Patient testified that she would not tell the nurses it was painful but would just grin and bear it.

Further, the Patient was the one receiving the care from the Member. The Patient continued to be firm in her allegation that the Member stuck his finger into her vagina on January 1, 2020, but was inconsistent in evidence around that incident. The Patient provided evidence that she told [Witness 4], her husband, about the alleged incident right after it occurred, and his response was that the Member was not coming back to their home. [Witness 1] testified that there was a client check in call done by the VON on January 2, 2020, that was documented in Procura that stated, “no concerns”. The next visit from the VON was set for January 3, 2020. The Patient went on to testify that she told [Nurse A], the nurse who provided care to her on January 3, 2020, that she did not want the Member back to her home. [Nurse A]’s documentation in Procura was only to increase the dressing changes after attending the Patient’s home on January 3, 2020. There was no documentation about the Patient saying she did not want the Member back into her home. [Nurse A] was not called as a witness so the Panel had to rely solely on what was documented in the Procura system and [Witness 1]’s testimony that stated a client requesting a nurse not to return would be documented and he would be informed. When asked about the voicemail message left on the Member’s phone on January 5, 2020 telling him not to come to the house because the Patient was in the hospital, the Patient testified that she may have asked [Witness 4] to call the Member to tell him this. The Panel found that this evidence did not make sense if as the Patient earlier testified, she had already told [Nurse A] this. Also, the January 2, 2020 check in call had nothing documented about a request for the Member not to return, even though the Patient and her husband had made this decision on January 1, 2020.

The Panel considered the inconsistencies found in the Patient’s testimony with the testimony of other witnesses. The Patient’s testimony concerning the care that was provided by the Member, such as her testimony that [Witness 3] completed all the wound dressing changes, the Member was watching television while [Witness 3] completed the wound care, and that there was little to no communication with her during care, was in conflict with much of [Witness 3]’s testimony. The Patient’s evidence also had inconsistencies with basic evidence of her husband, [Witness 4], such as how many floors the house they lived in had, and how long she had been using a walker to ambulate. The Panel was concerned by these inconsistencies and the Patient’s health status at the time the care was being provided to her on January 1, 2020. In review of these inconsistencies the Panel found the Patient’s testimony not to be reliable.

[Witness 4] was present in the home for all the care provided, but provided evidence that he was not in the room during the time wound care was completed. [Witness 4] stated several times while testifying that he did not remember, to the point of saying “So it’s hard remembering anything is a major feat”. All his evidence regarding the alleged incident came from what the Patient told him happened. Being the main complainant’s husband [Witness 4] has an interest in the outcome of the hearing.

Some key concerns and inconsistencies found in [Witness 4]’s testimony were:

• The testimony that [Witness 4] did not call the Member after the alleged incident to tell him not to come to the home as the Patient was in the hospital whereas [Witness 3]’s testimony that she heard a voicemail message from [Witness 4] stating they were not to come to the house due to the Patient being admitted to the hospital;

• [Witness 4] testified that he only called friends “buddy” yet throughout his testimony he referred to the Member as “buddy”; and

• [Witness 4] initially testified that this was the first VON visit to their home, yet when cross-examined, he went into detail about other occasions where the VON came to the home.

[Witness 4] was often unable to recall much of the detail of the care provided by the Member to the Patient from December 29, 2019 - January 1, 2020. When questioned how many times the Member came to the home [Witness 4] testified that he had no idea. [Witness 4] responded several times with “not sure” and stated in the hearing “my mind is screwed”, and that he has had memory issues. The Panel found [Witness 4] was honest about his memory and willing to answer the questions as best he could. The evidence that [Witness 4] provided to the Panel lacked specificity, and therefore could not be heavily relied upon by the Panel.

The Member was in attendance on all 4 days that care was provided to the Patient in her home including the day of the alleged incident on January 1, 2020. The Panel found that the Member’s evidence was consistent with [Witness 3] and [Witness 1]’s testimony. The Member had good recall of the care provided from December 29, 2019 - January 1, 2020, to the detail of checking the wound for bone as he had seen white matter in it. The Member did not waiver on his position. The Member’s evidence was confirmed either by [Witness 3], [Witness 1] or the Procura documentation.

The Panel did consider the contradictions between the Patient and the Member’s testimony, specifically immediately after the wound care was completed on January 1, 2020. While the Panel was troubled by these contradictions, it did not find them sufficient to undermine the Member’s credibility when he denied that he sexually abused the Patient. The Panel noted that the Member had no former record of such conduct. The Panel observed no change in his behaviour when testifying, or cross-examining witnesses. Overall, the Panel found the Member’s testimony reasonable and his denials plausible.

Ultimately, in carefully considering the standard of proof, that being a balance of probabilities, given the totality of the evidence before it, the Panel was unable to find that the incident as alleged is more likely than not to have occurred.

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.