College of Nurses of Ontario v. Cullen, 2024 ONCNO 125219 — College of Nurses of Ontario Discipline Committee | minicounsel

PANEL: Tyler Hands, RN Chairperson Lynn Hall, RN Member Matthew Secord, RN Member Sylvia Douglas Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) MEGAN SHORTREED for ) College of Nurses of Ontario

and - )

BARRY MICHAEL CULLEN ) CHRISTOPHER BRYDEN for Registration No. 8313983 ) Barry Michael Cullen

) KIMBERLEY ISHMAEL ) Independent Legal Counsel

) Heard: February 26, 2024

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on February 26, 2024, 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 patient and the co-workers’ names, or any information that could disclose the identities of the patient or the co-workers referred to orally or in any documents presented at the Discipline hearing of Barry Michael Cullen.

The Panel considered the submissions of the parties and decided that there be an order preventing public disclosure and banning the publication or broadcasting of the patient and the co-workers’ names, or any information that could disclose the identities of the patient or the co-workers referred to orally or in any documents presented at the Discipline hearing of Barry Michael Cullen.

The Allegations

College Counsel advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs #1(a), (b), (c), #3(b)(i), #3(c)(iv) and #3(d) in the Notice of Hearing dated January 2, 2023. The Panel granted this request. The remaining allegations against Barry Michael Cullen (the “Member”) are as follows:

IT IS ALLEGED THAT:

[Withdrawn]:

a. [Withdrawn];

b. [Withdrawn];

c. [Withdrawn]; and/or

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that on one or more occasions, while working as a registered nurse at the Facility, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession as follows:

a. with respect to a patient known as “Patient A”:

i. on or about December 14 – 15, 2020, you rubbed Patient A’s neck for longer than clinically necessary and/or rubbed her shoulders, back, and/or arms when such touching was not of a clinical nature appropriate to the service provided;

ii. on or about December 15 or 16, 2020, you asked for Patient A’s phone number and home address; and/or asked her if she wanted to stay with you all night or words to that effect; and/or asked her if she wanted to meet you for coffee after work; and/or called her cute; and or sat so close to her that your knees were touching her bed; and/or called and sent text messages to Patient A’s personal phone from your personal phone without clinical purpose;

iii. on or about January 25, 2021, you offered to massage Patient A’s neck when there was no clinical reason for doing so and/or asked her if she had anyone at home to rub her neck; and/or called Patient A on her personal phone when there was no appropriate clinical reason for doing so; and/or

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that one or more occasions, while working as a registered nurse at the Facility, you engaged in conduct or performed an act that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional with respect to one or more of the following incidents:

a. with respect to a patient known as “Patient A”:

b. during the period November 9, 2020 to March 11, 2021, with respect to a nursing colleague known as “Nurse A” you:

i. [Withdrawn];

ii. sent a message or messages to Nurse A asking her, in effect, if she wanted to be “friends with benefits”;

iii. asked Nurse A if she needed a ride home and/or wanted to go for coffee and/or wanted to chat, and/or wanted you to get groceries for her although she had declined your offers; and/or

c. during the period June 2020 to March 2021, on one or more occasions, with respect to a nurse known as “Nurse B” you:

i. made comments about the bodies and/or appearance of women although she asked you not to;

ii. told Nurse B a story about a woman who flashed her breasts at you;

iii. touched her feet with your feet;

iv. [Withdrawn]; and/or

d. [Withdrawn].

Member’s Plea

The Member admitted the allegations set out in paragraphs #2(a)(i), (ii), (iii), #3(a)(i), (ii), (iii), #3(b)(ii), (iii), #3(c)(i), (ii) and (iii) in the Notice of Hearing. The Panel received a written plea inquiry which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admissions were voluntary, informed and unequivocal.

Agreed Statement of Facts

College Counsel and the Member’s Counsel advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads, unedited, and without the lettered exhibits mentioned therein as follows:

THE MEMBER

Barry Michael Cullen (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on August 5, 1982. The Member moved into the Non-Practising Class from October 28, 2013 to April 17, 2020. The Member re-entered the General Class from April 17, 2020 until December 11, 2021. The Member resigned his certificate of registration with CNO on December 11, 2021.
The Member is registered as an RN in Michigan, United States. The Member’s license in Michigan is currently active.
The Member was employed by Fiat Chrysler Automobiles Canada Inc. (“FCA”) on a part-time casual basis as an occupational health nurse from June 2020 until his resignation from FCA in April 2021.
The Member was one of 3 full-time nurses, 5 part-time nurses, and 2 temporary nurses employed at FCA. The Member and the other nurses provided basic primary care to FCA employees at two sites within the FCA Windsor Assembly Plant, including the Hospital and the First Aid.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Patient A

Patient A was an employee at the Windsor Assembly Plant. In December 2020, Patient A was working on the chassis line and was experiencing job-related injuries. As a result, in early December 2020, Patient A began attending First Aid regularly. The Member was often working in First Aid when Patient A attended for care.
Patient A’s first visit to First Aid where she was treated by the Member was on or about December 7, 2020. During this first visit, the Member was very chatty with Patient A and talked about his home life, including his wife and daughter.
On or about December 14, 2020, Patient A attended First Aid again and was treated by the Member. Patient A expressed concerns about her neck and the Member rubbed icy hot on her shoulders, arms, and down her back. Patient A reported that the rubbing was for too long and felt inappropriate. Patient A also noted that other nurses who treated her in the past gave the icy hot a quick rub.
The next day, on or about December 15, 2020, Patient A attended First Aid because she was having a panic attack. Patient A went into the private room to lie down on a bed and the Member came into the room and shut the door. The Member pulled a stool up and sat on it. The Member was so close to the bed that his knees touched it. Patient A noted that the Member was closer than the requisite COVID-19 six feet and in fact, was so close that she felt like her space was being invaded.
If the Member were to testify, he would state that during this visit, Patient A made comments that she hated her job and hated her life, which caused the Member to be concerned that Patient A was exhibiting symptoms of depression. However, he did not communicate these concerns to Patient A, or make any notation in the health record.
During this visit, the Member asked Patient A for her phone number and stated she had to let him know if she got home safely because of the state she was in.
The Member also asked her if she wanted to spend the night with him or would like to meet him for coffee after work. The Member told Patient A on more than one occasion how cute she was, and he also picked lint off her pant legs. Patient A later reported that she felt like throwing up because she felt so unsafe, but did not state this to the Member at the time. Patient A told the Member she just wanted to go home and she left First Aid.
When Patient A arrived home, she saw the Member was texting her on her personal phone from his personal phone. In the Member’s texts, he asked Patient A to call him and said, “Sleep well My Friend.” The Member also called Patient A, but she did not answer. If the Member were to testify he would state that he was calling and texting her in part out of concern for her wellbeing, and in part to seek a personal relationship with her.
On December 16, 2020, the Member texted Patient A about her career and her anxiety.
If Patient A were to testify, she would testify, that after the Christmas holiday, she made a point not to go to First Aid because she was afraid the Member would be there.
On January 25, 2021, Patient A attended First Aid to see a doctor, but the Member was the only nurse available in First Aid. Patient A sat against a wall, as far as she could from the Member, crossed her legs, and kept her sweater on so she would seem as unfriendly as she could. If the Member were to testify, he would testify that during this visit Patient A asked for a referral to the company’s corporate doctor and that he provided same.
Patient A would say that the Member pulled a stool up and sat very close to her. The Member asked Patient A for her address and telephone number and tried to make conversation with her. At one point, Patient A went into the bathroom and when she came out, the Member was right by the bathroom door.
The Member also asked her if there was anyone to massage her neck because she had “someone here.” Patient A tried to leave First Aid and the Member accompanied her. Patient A felt the Member standing too close to her. The Member asked her a couple more times whether she wanted him to rub her neck, and every time she responded “No”.
Patient A ultimately obtained a doctor’s note from the doctor and left work. Patient A went to a friend’s place and the Member called her personal phone from work and discussed neck massagers. Patient A put the Member on hold and then hung up the phone. Patient A would testify that, later, the Member again called her personal phone, but she did not answer.
If the Member were to testify, he would state he believed at the time that the care he provided to Patient A was clinically appropriate and the best treatment for Patient A. The Member would further testify that he did not have any sexual intent in relation to Patient A and he regrets that he made her feel uncomfortable.

Nurse A

Nurse A, RN, was employed as a nurse at FCA. Nurse A began working at FCA in the summer of 2020 and she met the Member on one of her first training days in August 2020.
In September 2020, the Member began texting and calling Nurse A asking to chat or go for coffee, but Nurse A did not go out with him.
The Member was aware of where Nurse A lived as he picked up a paper at her request in her mailbox on one occasion and gave Nurse A a ride to or from work on one occasion. The Member would also testify that on one occasion, Nurse A called the Member while she was hospitalized to seek his assistance in transporting her car home, rather than incurring parking costs at the Hospital. This occurred prior to incidents that made Nurse A uncomfortable.
On November 9, 2020, Nurse A attended work for the day shift at 0700 hours and the Member was going off the night shift. The Member and Nurse A had an overlap of approximately one hour.
Later that day the Member sent a series of text messages to Nurse A, including the following exchange:

The Member texted, “Okay let me know if u want to meet for coffee to chat! No strings attached FWB [friends with benefits] would probably work for both of us????”
Nurse A responded, “It doesn’t change the fact that you’re married”.
The Member replied, “We can both keep what we have while fulfilling needs for each other!!!”
Nurse A texted in response, “Well, I wouldn’t want anyone to do that to me.. so I have a hard time being okay with it”.
The Member responded, “Give me a chance to chat with you!”
Nurse A replied, “But chatting isn’t what you’re asking for!”
The Member then texted “Let’s start there! I will explain. We can at least be Good Friends”. The Member subsequently attempted to call Nurse A, but she did not pick up the call.
The Member then texted, “Got time??? I am sorry, I thought u wanted the same thing I did!”.
Nurse A texted in response, “I don’t, we work together and this makes me uncomfortable.”
The Member replied, “All good let’s just be friends. I am quite good with that! Deal???” The Member then attempted to call Nurse A again, but she did not pick up the call.
Nurse A subsequently texted, “Deal”.

Nurse A reported that she was upset by the Member’s conduct and became constantly worried that she would have to work alone with him. The Member knew where Nurse A lived, and she was afraid to get out of her car at home. Nurse A told her boyfriend [ ] about the Member’s texts and calls. Nurse A’s boyfriend would come to First Aid on occasion so Nurse A would not be alone with the Member.
If the Member were to testify, he would state that based on his conversations with Nurse A he believed she was sexually attracted to him. The Member would further testify that he was interested in exploring a personal and sexual relationship with Nurse A and accordingly sent text messages to her about this. As outlined in paragraph 23 above, Nurse A advised in the text message exchange that she was not interested, and the Member apologized and stated he thought Nurse A wanted the same thing.
The Member continued to send Nurse A text messages and call her after November 2020. By way of example, on November 23, 2020, the Member sent her a text asking if she was interested in a part-time job at a cannabis store. The Member also offered to give Nurse A rides home from work, buy groceries for her at Costco, talk, and go out for coffee. Nurse A declined his offers, and at one time, noted she had said “no” to him many times, yet he kept asking.
If the Member were to testify, he would state that he was not aware that his messages were unwelcome or that Nurse A felt uncomfortable with his communications.

Nurse B

Nurse B, RN, was employed at FCA as a nurse. [ ]. Nurse B started working with the Member in the summer of 2020. On the first day she worked with the Member, he hugged her.
Between June 2020 to March 2021, the Member engaged in conduct that made Nurse B uncomfortable.
The Member made comments about women’s looks and bodies on TV in the nursing station. He also told staff about a girl who flashed her breasts at him. The Member’s comments made Nurse B very uncomfortable, and she told him to stop talking like that on a number of occasions because she did not want to hear it.
In addition, when the Member sat beside Nurse B in the nursing station, he would tap her feet with his feet.
If Nurse B were to testify, she would describe the Member as having no boundaries and being unprofessional and unpredictable. She would testify that she felt the Member made the workplace environment unsafe. The Member would testify that Nurse B never made these feelings known to him.
If the Member were to testify, he would say that the physical space of the workplace was very small which may have led to his contact with Nurse B’s feet. The Member would further testify that discussion about body types and other inappropriate topics were a common topic of workplace banter; however, he acknowledges that those discussions were inappropriate.

CNO STANDARDS

Code of Conduct

CNO’s Code of Conduct is a standard of practice describing the accountabilities all Ontario nurses have to the public. The Code of Conduct consists of six principles including:

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

CNO’s Code of Conduct provides, in relation to the principle requiring nurses to maintain patients’ trust by providing safe and competent care, that nurses are accountable to, and practice under, relevant laws and CNO’s standards of practice.
CNO’s Code of Conduct further provides, in relation to the principle requiring nurses to act with integrity to maintain patients’ trust, that nurses maintain professional boundaries with patients. CNO’s Code of Conduct defines boundaries as:

The points when a relationship changes from professional and therapeutic to unprofessional and personal. Therapeutic nurse-patient relationships put patients’ needs first. Crossing a boundary means a nurse is misusing their power and trust in the relationship to meet personal needs, or behaving in an unprofessional manner with the patient. Crossing a boundary can be intentional or unintentional.

In addition, CNO’s Code of Conduct provides, in relation to the principle requiring nurses to work respectfully with colleagues to best meet patients’ needs, that:

Nurses are professional with colleagues and treat them with respect, including on social media; and
Nurses collaborate and communicate with colleagues in a clear, effective, professional and timely way.

CNO’s Code of Conduct also provides, in relation to the principle requiring nurses to maintain public confidence in the nursing profession, that nurses are accountable for their own actions and decisions.
Attached as Exhibit “A” is a copy of CNO’s Code of Conduct which was in force at the time of the incidents.

Professional Standards

CNO’s Professional Standards provides an overall framework for the practice of nursing and a link with other standards, guidelines and competencies developed by CNO. It includes seven broad standard statements and indicators that illustrate how the standard may be demonstrated pertaining to accountability, continuing competence, ethics, knowledge, knowledge application, leadership and relationships.
CNO’s Professional Standards provides, in relation to the accountability standard, that nurses are accountable to the public and responsible for ensuring their practice and conduct meets the legislative requirements and the standards of the profession. Nurses are responsible for their actions and the consequences of those actions as well as for conducting themselves in ways that promote respect for the profession. Nurses demonstrate this standard by ensuring their practice is consistent with CNO’s standards of practice and guidelines as well as legislation.
CNO’s Professional Standards further provides, in relation to the ethics standard, that ethical nursing includes acting with integrity, honesty and professionalism in all dealings with the patient and other health care team members.
CNO’s Professional Standards provides, in relation to the relationship standard and therapeutic nurse-patient relationships, that nurses demonstrate this standard by:

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

CNO’s Professional Standards provides, in relation to the relationship standard and professional relationships, that professional relationships are based on trust and respect, and result in improved patient care. Nurses demonstrate this standard by:

Role-modelling positive collegial relationships; and
Using a wide range of communication and interpersonal skills to effectively establish and maintain collegial relationships.

In addition, CNO’s Professional Standards provides, in relation to the leadership standard, that leadership requires self-knowledge (understanding one’s beliefs and values and being aware of how one’s behaviour affects others), respect, trust, integrity, shared vision, learning, participation, good communication techniques and the ability to be a change facilitator. Nurses demonstrate their leadership by providing, facilitating and promoting the best possible care/service to the public and by role-modelling professional values, beliefs and attributes.
Attached as Exhibit “B” is a copy of CNO’s Professional Standards that was in force at the time of the incidents and has since been retired.

Therapeutic Nurse-Client Relationship

CNO’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”), contains four standard statements with indicators that describe nurses’ accountabilities with respect to therapeutic communication, patient-centred care, maintaining boundaries and protecting the patient from abuse. The TNCR Standard provides that the nurse-patient relationship is built on trust, respect, empathy, professional intimacy and requires the appropriate use of power inherent in the care provider’s role.
CNO’s TNCR Standard provides, in relation to patient-centered care, that nurses work with the patient to ensure that all professional behaviours and actions meet the therapeutic needs of the patient. Nurses meet the standard by recognizing that the patient’s well-being is affected by the nurse’s ability to effectively establish and maintain a therapeutic relationship.
CNO’s TNCR Standard further provides, in relation to maintaining boundaries, that nurses are responsible for effectively establishing and maintaining the limits or boundaries in the therapeutic nurse-patient relationship. The TNCR Standard defines a boundary as:

A boundary in the nurse-client relationship is the point at which the relationship changes from professional and therapeutic to unprofessional and personal. Crossing a boundary means that the care provider is misusing the power in the relationship to meet her/his personal needs, rather than the needs of the client, or behaving in an unprofessional manner with the client. The misuse of power does not have to be intentional to be considered a boundary crossing.

In addition, CNO’s TNCR Standard provides, in relation to maintaining boundaries, that nurses meet this standard by:

Setting and maintaining the appropriate boundaries within the relationship, and helping clients understand when their requests are beyond the limits of the therapeutic relationship;
Developing and following a comprehensive care plan with the client and health care team that aims to meet the client’s needs;
Ensuring that any approach or activity that could be perceived as a boundary crossing is included in the care plan developed by the health care team;
Recognizing that there may be an increased need for vigilance in maintaining professionalism and boundaries in certain practice settings;
Abstaining from disclosing personal information, unless it meets an articulated therapeutic need of the client;
Consulting with colleagues and/or the manager in any situation in which it is unclear whether a behaviour may cross a boundary of the therapeutic relationship, especially circumstances that include self-disclosure or giving a gift to or accepting a gift from a client;
Ensuring that the nurse-client relationship and nursing strategies are developed for the purpose of promoting the health and well-being of the client and not to meet the needs of the nurse, especially when considering self-disclosure, giving a gift to or accepting a gift from a client; and
Documenting client-specific information in the client’s record regarding instances in which it was necessary to consult with a colleague/manager about an uncertain situation (non-client related information, such as a letter of summary or incident report, should be documented on the appropriate confidential form).

Attached as Exhibit “C” is a copy of CNO’s TNCR Standard that was in force at the time of the incidents.
The Member admits and acknowledges that he contravened CNO’s Code of Conduct, Professional Standards and TNCR Standard when he:

Rubbed Patient A’s neck for longer than clinically necessary and rubbed her shoulders, back, and arms when such touching was not of a clinical nature appropriate to the service provided;
Asked for Patient A’s phone number and home address, asked Patient A if she wanted to stay with him all night or words to that effect, asked Patient A if she wanted to meet him for coffee after work, called Patient A cute, sat so close to Patient A that his knees were touching Patient A’s bed, and called and sent text messages to Patient A’s personal phone from his personal phone without clinical purpose; and
Offered to massage Patient A’s neck when there was no clinical reason for doing so, asked Patient A if she had anyone at home to rub her neck, and called Patient A on her personal phone when there was no appropriate clinical reason for doing so.

The Member further admits and acknowledges that he contravened CNO’s Code of Conduct and Professional Standards when he:

Sent messages to Nurse A asking her, in effect, if she wanted to be “friends with benefits”;
Asked Nurse A if she needed a ride home, wanted to go for coffee, wanted to chat and wanted him to get groceries for her although she had declined his offers;
Made comments about the bodies and/or appearance of women although Nurse B asked him not to;
Told Nurse B a story about a woman who flashed her breasts at him; and
Touched Nurse B’s feet with his feet.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 2(a)(i), 2(a)(ii) and 2(a)(iii) of the Notice of Hearing in that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as described in paragraphs 5 to 17, 34 to 36, 38 to 43 and 45 to 52 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 3(a)(i), 3(a)(ii), 3(a)(iii), 3(b)(ii), 3(b)(iii), 3(c)(i), 3(c)(ii) and 3(c)(iii) of the Notice of Hearing, and in particular his conduct was dishonourable and unprofessional, as described in paragraphs 5 to 53 above.

OTHER

With the leave of the Panel of the Discipline Committee, CNO withdraws the remaining allegations in the Notice of Hearing, which are as follows:

Paragraphs 1(a), (b) and (c); and
Paragraphs 3(b)(i), 3(c)(iv) and 3(d) of the Notice of Hearing.

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 #2(a)(i), (ii), (iii), #3(a)(i), (ii), (iii), #3(b)(ii), (iii), #3(c)(i), (ii) and (iii) of the Notice of Hearing. As to allegations #3(a)(i), (ii), (iii), #3(b)(ii), (iii), #3(c)(i), (ii) and (iii), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonourable and unprofessional.

Reasons for Decision

The Panel considered the Agreed Statement of Facts and the Member’s plea and finds that this evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegations #2(a)(i), (ii) and (iii) in the Notice of Hearing are supported by paragraphs 5 to 17, 34 to 36, 38 to 43, 45 to 52 and 54 in the Agreed Statement of Facts. The Member admitted that he committed the acts of professional misconduct as alleged in paragraphs #2(a)(i), (ii) and (iii). The Panel finds that the Member contravened the Code of Conduct, the Professional Standards and the Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”). The Member failed to meet the standard of practice when he touched or rubbed Patient A’s neck longer than clinically necessary, or when such touching was not of a clinical nature appropriate to the service provided, asked for Patient A’s phone number, asked Patient A to stay with the Member overnight, asked Patient A to go for coffee, sat very close to Patient A and sent text messages without clinical purpose. The Member breached the Code of Conduct standard by failing to act with integrity to maintain Patient A’s trust, thereby compromising the public’s confidence in the nursing profession. The Member crossed boundaries by misusing his power and trust, inherent in the professional relationship, to meet his personal needs. The Agreed Statement of Facts indicated that the Member did not work respectfully with his colleagues as he sent text messages asking if Nurse A wanted to be “friends with benefits”, offered rides home, asked Nurse A to go for coffee even after the requests made by the Member were declined. Nurse A did not want to work alone with the Member and had her boyfriend come to the First Aid station on occasion, so Nurse A would not be alone with the Member. Nurse A felt unsafe outside the work environment as the Member knew where she lived. The Member made unwanted comments about the appearance of women and told a story about a woman flashing her breasts at him and was told by Nurse B that comments like these were unwanted. The Member did not demonstrate leadership through role-modelling professional values, beliefs and attributes, which contravenes the Professional Standards. The Member’s behavior affected Patient A and his nursing colleagues. The Member failed to meet the TNCR Standard by the use of communication that eroded trust and respect with Patient A and his nursing colleagues. The Member’s professional behavior did not meet Patient A's needs and crossed boundaries.

Allegations #3(a)(i), (ii), (iii), #3(b)(ii), (iii), #3(c)(i), (ii) and (iii) in the Notice of Hearing are supported by paragraphs 5 to 53 and 55 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in dealing with Patient A and two nursing colleagues with inappropriate comments, touching, unwanted and persistent texting was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations. The Member’s conduct was relevant to his nursing practice as it was only because of his work as a nurse that he had information about Patient A. The Member’s conduct towards Nurse A and B was also relevant to the practice as the Member as they were colleagues and worked together. The Member was in a place of employment working with colleagues, and therefore professionally obligated to role model positive collegial relationships and effectively establish and maintain collegial relationships.

The Member admitted and acknowledged that his conversations were inappropriate. Nurses are accountable for practicing in accordance with the Professional Standards, practice expectations, legislation and regulations. They inform nurses of their accountabilities and the public of what to expect of nurses. Standards apply to all nurses regardless of their role, job description or area of practice. The Panel finds that the Member’s conduct was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations in contravening the College’s Code of Conduct, the Professional Standards and the TNCR Standard.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of moral failing as the Member’s conduct breached Patient A’s trust, eroded the collegial relationship and the Member’s actions caused undue stress to his colleagues. The Member knew or ought to have known that his conduct was unacceptable and fell below the standards of a professional.

Penalty

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

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

Penalty Submissions

College Counsel’s Submissions

College Counsel submitted that the Joint Submission on Order also provides in Appendix “A” an undertaking and agreement by the Member for the Member’s permanent resignation as a member of the College effective February 26, 2024 (the “Undertaking”). Pursuant to this Undertaking, the Member undertakes, acknowledges and agrees to:

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

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

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

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

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

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

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

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

The aggravating factors in this case were:

The seriousness of the Member’s conduct;
The Member’s conduct was directed to one female patient and two female colleagues;
The Member’s conduct continued despite Nurse A and Nurse B repeatedly saying no to his advances;
The Member’s intended personal relationship with Patient A was in breach of the therapeutic nurse-client relationship;
The Member’s intended sexual relationship with Nurse A which she declined made her feel uncomfortable; and
Patient A, Nurse A and Nurse B stated they felt uncomfortable with the Member.

The mitigating factors in this case were:

The Member accepted responsibility for his conduct by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College;
The Member has no prior disciplinary history with the College;
The Member participated in an uncontested hearing saving time and expense to the College; and
The Member voluntarily resigned his certificate of registration.

Specific deterrence is not essential in this case because the Member has already undertaken to permanently resign from the practice of nursing. In such circumstances, the penalty of an oral reprimand is sufficient.

General deterrence is achieved through the oral reprimand and the fact that the findings will be publicly posted indefinitely and sends a clear message to other members of the profession that there are serious consequences for similar misconduct.

Rehabilitation and remediation are not essential components of the penalty in this case given the Member’s permanent resignation. There is no public interest served in including remedial terms in the penalty.

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

College Counsel submitted the following cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee:

CNO v. Wood (Discipline Committee, 2012): In this case, the hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member did not meet the standard of practice of the profession in that he failed to maintain boundaries of the nurse-client relationship. The member engaged in an inappropriate personal and social relationship with a patient by providing his personal cell phone and home numbers and contacting the patient by phone and text. The member admitted that he engaged in conduct relevant to the practice of nursing, that having regard to all the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional. The sexual abuse allegation of a patient was withdrawn. The penalty included an oral reprimand and the member signed an undertaking to permanently resign as a member of the College.

CNO v. Doane (Discipline Committee, 2020): In this case, the hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member did not meet the standard of practice of the profession in that she failed to appropriately establish and/or maintain a professional relationship with a colleague. The member failed to engage with a colleague to understand a patient’s physical ability to walk and dismissed the colleague when that colleague offered assistance. The member’s actions showed a disregard for her professional obligation to work collaboratively with her colleague for the patient’s best interest. Her behavior showed an element of moral failing in that she ought to have known this conduct fell below the standards of the profession. The member was also involved in providing inadequate care to a patient. The member admitted that she committed the act of professional misconduct in failing to appropriately establish and/or maintain a professional relationship with a colleague. The penalty included an oral reprimand and the member signed an undertaking to permanently resign as a member of the College.

CNO v. Rosales (Discipline Committee, 2023): In this case, the hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member did not meet the standard of practice of the profession in that she submitted and or accepted payment for false claims under the Facility's employee group benefit plan and submitted to the Facility's employee group benefit plan prescriptions issued using a physician’s stamp, without the physician’s knowledge, permission and or authorization. The member knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional. The penalty included an oral reprimand and the member signed an undertaking to permanently resign as a member of the College.

The Member’s Counsel’s Submissions

The Member’s Counsel submitted that the Member agreed with College Counsel’s submissions.

Penalty Decision

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

The Member is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

Reasons for Penalty Decision

There is a high threshold for departing from a Joint Submission on Order established by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43. Departing from a joint submission would require a finding that the proposed penalty would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

The Panel accepted the Joint Submission on Order because it achieves the relevant penalty goals in this case and is not contrary to the public interest and does not bring the administration of justice into disrepute.

The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. In the normal course, this is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation.

The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility.

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

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

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

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

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

I, Tyler Hands, 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.