College of Nurses of Ontario v. Suk Jen Huang, 2024 ONCNO 142099

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Sherry Szucsko-Bedard, RN Chairperson Sylvia Douglas Public Member Sarah Louwagie, RPN Member Kimberly Wagg, RPN Member

BETWEEN:

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

• and - )

SUK JEN HUANG ) NO REPRESENTATION for REGISTRATION NO. AH098069 ) Suk Jen Huang

) CHRISTOPHER WIRTH ) Independent Legal Counsel

) Heard: August 12-13, 2024, via videoconference

AMENDED DECISION AND REASONS

Publication Ban

By Order of the Discipline Panel dated August 13, 2024, pursuant to subsection s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, no one shall publish or broadcast the names of the minor patients or counsellors involved, or any information that could disclose the identities of the minor patients or counsellors involved, referred to orally or in any documents presented in the Discipline hearing of Suk Jen Huang.

This matter was heard by a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) commencing on August 12, 2024.

The Member’s Non-Attendance at the Hearing

The hearing commenced 15 minutes late. As Suk Jen Huang (the “Member”) was not present at this start time, the Panel inquired of College Counsel as to whether the Member had made contact to state whether she intended to join the hearing. The Panel was informed that no such communication had been received.

College Counsel provided the Panel with evidence that the Member had been sent the Notice of Hearing on February 28, 2024, by way of an affidavit from Kristen Kellett, Prosecutions Clerk, affirmed March 5, 2024 and marked as Exhibit #1, confirming that Ms. Kellett sent correspondence, which included the Notice of Hearing, on February 28, 2024 and marked as Exhibit #3 to the Member’s last known address on the College Register.

Pursuant to College By-law 44.2, members of the College are required to complete annually and return to the College, a form containing information including the member’s home address, primary telephone number and primary email address checked personally by the member on a regular basis.

Ms. Kellett’s affidavit also contained information that the Member had previously been sent a memo regarding Hearing Procedures for Self-Represented Members, the Discipline Committee Rules, the Discipline Committee Guidelines and the memo regarding the Issuance of a Summons on November 27, 2023 which were re-sent to the Member along with the Notice of Hearing on February 28, 2024.

The Panel was satisfied that the Member had received adequate notice of the time, place and purpose of the hearing and of the fact that if she did not attend, the hearing may proceed in her absence.

The Member did not attend the videoconference hearing and did not request an in-person hearing. Accordingly, the Panel decided to proceed with the hearing in the Member’s absence under the authority of sections 6(5)(d) and 7(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”). The Panel notes that the videoconference line remained open until the end of the hearing and the Member did not join the hearing before its conclusion.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated February 28, 2024 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 July 13, 2021, while employed as a Registered Practical Nurse at [the Camp] in [ ], Ontario, you sexually abused [the Patient] by engaging in physical sexual relations with him.

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 while employed as a Registered Practical Nurse at [the Camp] in [ ], Ontario, you contravened a standard or practice of the profession or failed to meet the standards of practice of the profession, and in particular, on or about July 13, 2021, you failed to maintain the boundaries of the therapeutic nurse-client relationship in respect of [the Patient].

3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at [the Camp] in [ ], Ontario, 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, and in particular, on or about July 13, 2021, you failed to maintain the boundaries of the therapeutic nurse-client relationship in respect of [the Patient].

Member’s Plea

Given that the Member was not present and was not represented, she was deemed to have denied the allegations in the Notice of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

The Member was registered as a Registered Practical Nurse (“RPN”) from September 28, 2018 until February 15, 2024, when her Certificate of Registration was administratively suspended before it expired on March 18, 2024. At the time of the alleged incident described below (the “incident”), the Member worked at [ ] (the “Camp”) as an RPN, along with another RPN and with assistance from the main Health Centre staff from time to time. In this role, the Member provided health care services pertaining to the COVID-19 protocols, including screening, nasal swabbing and care of symptomatic persons, to the staff and campers. While most staff members were over 18 years old [the Patient], who was a counsellor at the Camp, was 17 years old in 2021 when the incident occurred. The campers were all under the age of 18.

Although [the Patient] was a counsellor at the Camp, he is alleged to have also been the Member’s patient, given her role and duties at the Camp.

To determine whether the Member committed acts of professional misconduct as alleged in the Notice of Hearing, the Panel addressed the following issues:

1. Did the Member sexually abuse [the Patient] by engaging in vaginal sexual intercourse with him while he was under the influence of marijuana provided by the Member?

2. Did the Member contravene a standard of practice of the profession or fail to meet the standards of practice of the profession by failing to maintain the boundaries of the therapeutic nurse-client relationship with [the Patient]?

3. Did the Member engage in conduct that would reasonably be regarded by members of the profession to be disgraceful, dishonourable and/or unprofessional by providing [the Patient] with marijuana and engaging in sexual vaginal intercourse with him when he was a patient within her circle of care and after providing him with marijuana?

The Evidence

The Panel received 14 exhibits from the College and heard testimony from four witnesses.

Witness #1 – [ ] [“Witness #1”]

[Witness #1], the co-owner of [the Camp], testified that a supervisor contacted him on the morning following the incident, on July 14, 2021, because of a complaint that was made by a minor staff member. [Witness #1] immediately investigated the complaint and determined the Member had supplied marijuana to and engaged in vaginal intercourse with [the Patient]. When [Witness #1] interviewed the Member, she initially denied the allegations. She eventually admitted to providing marijuana to [the Patient] and engaging in vaginal intercourse with him. The Member also admitted to cautioning [the Patient] not to tell anyone because she would be in trouble, and [the Patient] had made a “promise not to tell.” Accordingly, the Member’s employment was terminated immediately, and the Member was escorted out of the Camp.

Exhibits #4, #5, #6 and #8 outline the policies and procedures expected of every employee at the Camp.

Witness #2 – [the Patient]

[The Patient] was a minor, who was 17 years old at the time of the incident, was working as a counsellor at the Camp. [The Patient] testified that he, along with another counsellor, attended at the [ ] hall where the Member resided during her employment and that while there, he smoked marijuana provided by the Member and engaged in vaginal intercourse that was initiated by the Member. He testified that he was under the Member’s care as she had given him a COVID-19 test using a nose swab. He testified that he was “in and out of it” and was not able to give consent to intercourse.

Witness #3 – K. Petgrave (“Ms. Petgrave”)

Ms. Petgrave was the College Investigator at the time of the incident who was assigned to investigate the Member’s practice to determine if professional misconduct had occurred. She interviewed [Witness #1], [the Patient], another RPN at the Camp who had first-hand knowledge of the incident and [Witness #4], the Senior Health Care Supervisor and Registered Nurse who worked at the Camp. Ms. Petgrave described the relevant practice standards, including the Code of Conduct, the Professional Standards, the Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) and the Ethics Standard. Ms. Petgrave confirmed that these standards were in force and applicable to all nurses at the relevant time, indicated when the standards were last updated, and confirmed that current and past versions of the standards documents are maintained by the College in the ordinary course of business.

Exhibits #9, #10, #11, #12 and #13 respectively outline the Member’s registration as being current at the time of the incident along with the practice standards, the Code of Conduct, the Professional Standards, the TNCR Standard and the Ethics Standard in effect in 2021 when the incident occurred.

Witness #4 – [ ] [“Witness #4”]

[Witness #4] was the Senior Health Care Supervisor and Registered Nurse working at the Camp at the time of the incident. She testified about the Camp’s policies and the Member’s conduct. [Witness #4] testified about the Camp’s training prior to the season starting (Exhibit #8), including the staff contract, boundary training and expectations around staff conduct. Both [Witness #1] and [Witness #4] testified that the Member was provided with onboarding training prior to the arrival of other staff, counsellors and campers. They testified that the Member received her contract on June 11, 2021 (Exhibit #4) outlining her contractual obligations which included a zero-tolerance policy for abuse, and maintaining therapeutic boundaries.

[Witness #4] was present when the Member was interviewed by [Witness #1] and testified that the Member admitted to having vaginal intercourse with [the Patient] when discussing contraception and the morning after pill. She testified that the Member was a paid employee retained to provide COVID-19 care to all staff and campers at the Camp when the incident occurred. She testified that she reported the incident to the College for investigation.

Exhibits #8 and #14 supported the information provided by [Witness #1], [the Patient] and [Witness #4]’s report to the College relating to the Member.

Final Submissions

College Counsel reminded the Panel that the College bears the onus of satisfying the Panel, on a balance of probabilities, that the Member engaged in professional misconduct as alleged in the Notice of Hearing.

College Counsel submitted that the documentary evidence, the testimony of the witnesses and the affidavit evidence clearly established that it was more probable than not that the Member committed the acts as alleged in the Notice of Hearing. With respect to witness testimony, the evidence provided regarding the incident, was clear, cogent and convincing. The Member admitted to the allegations eventually but requested that she be able to communicate with [the Patient] after her employment was terminated and before being escorted from the Camp.

College Counsel submitted that the Member’s conduct was egregious in that she used her position as a senior staff member to take advantage of [the Patient], who was within her circle of care, when she provided him with marijuana and engaged in vaginal intercourse with him. College Counsel submitted that this amounts to sexual abuse as defined in the Regulated Health Professions Act. College Counsel submitted that the Member’s conduct was also a contravention of the standards of practice, namely the Code of Conduct, the Ethics Standard, the TNCR Standard and the Professional Standards, Revised 2002 (the “Professional Standards”) and was a failure to maintain boundaries as set out within these standards and the Code of Conduct.

College Counsel submitted that the College had presented clear and cogent evidence to support findings of professional misconduct against the Member as alleged in the Notice of Hearing. College Counsel submitted the definition of professional misconduct within the Health Professions Procedural Code (“the Code”) and defined the criteria of who constitutes a patient under Ontario Regulation 260/18.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities based upon clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1, 2 and 3 in the Notice of Hearing. As to allegation #3, the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional.

Reasons for Decision

The Panel considered and accepted the testimony of the witnesses, the documentary evidence and the submissions from College Counsel and finds that the evidence supports the findings of professional misconduct as alleged in the Notice of Hearing.

The Panel found all four witnesses to be credible regarding their knowledge of the events specific to the allegations.

The testimony provided by [Witness #1] was respectful, he had good recall of the events, he had no interest in the outcome, and he provided cogent evidence when testifying before the Panel.

[The Patient] was solemn throughout his recount of the events, looking at the screen to make eye contact, responding to the questions professionally and answering the questions even though they were personal. [The Patient] confirmed that the Member made him “promise not to tell” and he appeared to be tearful when discussing the incident.

The testimony provided by Ms. Petgrave was professional in nature and consistent with the other witnesses’ testimonies.

[Witness #4] had good recall of the events, her testimony aligned with that of [Witness #1], she had no interest in the outcome and referred to her notes when she was unsure as to her recall.

Allegation #1

The Member admitted to the allegation of vaginal intercourse with [the Patient] when she was interviewed by [Witness #1], in the presence of [Witness #4]. This admission was a statement against the Member’s own interest. [The Patient]’s evidence was consistent with the Member’s statement during her interview with [Witness #1] and [Witness #4], confirming that the incident occurred and that she knew that it was wrong. The Panel accepted [the Patient]’s testimony that the Member provided him with marijuana and initiated vaginal sexual intercourse with him.

At the time of the incident, both [the Patient] and the Member were employees of the Camp. [The Patient] falls under the definition of a patient because he directly received care from the Member through COVID-19 surveillance (nasal swabbing) and nursing services while at the Camp. The Member was able to influence [the Patient] by way of her a position of power and did abuse this trust when she offered marijuana and initiated vaginal intercourse with him while he was under the influence of marijuana. [The Patient] was also a minor at the time of the incident. The Panel concluded that the Member knowingly committed professional misconduct and that her conduct constituted sexual abuse.

Allegation #2

The Member was paid for her services while working at the Camp. Accordingly, [the Patient] was within her circle of care when she provided him with marijuana and engaged in vaginal intercourse with him while he was under the influence of marijuana. The Member’s conduct was clearly a gross violation of her obligations to [the Patient] and was a breach of the standards of practice. Trust and honesty are at the heart of the standards. The Member behaved in a dishonest and untrustworthy manner by way of contravening the Code of Conduct, the Professional Standards, the Ethics Standard, and the TNCR Standard, which outlines the clear boundaries that members must maintain within the therapeutic nurse patient relationship. The Member breached these standards to meet her own personal needs.

Allegation #3

The Panel finds that the Member’s conduct was relevant to the practice of nursing and would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional. It was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations in breaching the Code of Conduct, the Professional Standards, the TNCR Standard and the Ethics Standard. The Member knew or ought to have known that any sexual contact with a patient was unacceptable. The Member was aware of the College’s practice standards, as well as the Camp’s policies and had received training. Nurses must maintain professional boundaries with those in their circle of care, which the Member failed to do.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of moral failing when she provided marijuana to and engaged in vaginal intercourse with [the Patient] who was in a subordinate position to her and was in her circle of care. The Member knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional and that as a nurse sexual contact with a patient is not acceptable as she had the College standards and training from the Camp.

Finally, the Panel finds that the Member’s conduct was disgraceful. Nurses must maintain professional boundaries with those under their care. The Member’s conduct brought shame on herself and by extension to the entire profession. Taking advantage of a vulnerable patient is anathema to what it means to be a nurse. The Panel finds that the Member’s conduct was egregious in nature and would reasonably be regarded as such by members of the profession.

Penalty

Penalty Submissions

College Counsel submitted that, in light of the Panel’s findings of professional misconduct, the Panel should make an Order as follows:

1. Requiring Suk Jen Huang (the “Member”) to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. Requiring the Member to reimburse CNO for funding provided for [the Patient] under the programs required by s. 85.7 of the Health Professions Procedural Code, up to the amount of $5,000, if [Patient A] accesses the fund.

3. Directing the Executive Director to immediately revoke the Member’s certificate of registration.

College Counsel submitted that as the Member has been found to have sexually abused a patient and that the sexual abuse consisted of sexual intercourse, section 51(5)(3) of the Code requires the Panel to reprimand the Member and to revoke her certificate of registration.

In addition, section 51(2) (5.1) of the Code permits the Panel to order that the Member reimburse the College for funding provided for the patient under the program required by Section 85.7 of the Code.

The aggravating factors in this case were:

• The Member demonstrated the greatest breach of trust;

• The Member took advantage of a vulnerable minor patient for her own personal interests;

• [The Patient] was a subordinate to the Member;

• When the Member was first questioned about the interaction with [the Patient], she initially denied the incident;

• The Member lashed out at [the Patient] when confronted as she made him swear that he would not tell anyone; and

• The Member provided marijuana to [the Patient].

With respect to mitigating factors, the Member chose not to participate in the process, and so there were no mitigating factors for the Panel to consider. The Member did not attend the hearing and therefore could not express remorse for her actions and made no admissions of wrongdoing.

The proposed penalty would achieve public protection by removing the Member from nursing practice entirely.

The Penalty provides general deterrence through the oral reprimand, financial restitution and the revocation of the Member’s certificate of registration, which will send a strong signal to the nursing profession that there are serious consequences for this type of misconduct.

The Penalty provides specific deterrence to the member by way of oral reprimand, financial restitution for counseling of [the Patient] should he seek it and by revocation of the Member’s registration which protects the public.

Remediation and rehabilitation need not be considered given that the Member will be removed from nursing practice.

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

CNO v. Ramos (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member engaged in a relationship with a patient in his circle of care and instructed the patient not to tell because he would get into trouble. The member was found guilty of professional misconduct. The penalty included an oral reprimand, reimbursement to the College for funding provided to the patient of up to $5,000.00 if the patient accesses the fund for therapy or counselling and immediate revocation of the member’s certificate of registration.

CNO v. Anderson (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member engaged in a relationship with a patient in her circle of care. The member was found guilty of professional misconduct. The penalty included an oral reprimand, reimbursement to the College for funding provided to the patient of up to $5,000.00 if the patient accesses the fund for therapy or counselling and immediate revocation of the member’s certificate of registration.

Penalty Decision

The Panel accepts the College’s Submission on Order and accordingly orders:

1. Suk Jen Huang (the “Member”) is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. The Member is required to reimburse College of Nurses of Ontario for funding provided for [the Patient] under the programs required by s. 85.7 of the Health Professions Procedural Code, up to the amount of $5,000, if [the Patient] accesses the fund.

3. The Executive Director is directed to immediately revoke the Member’s certificate of registration.

Reasons for Penalty Decision

Having concluded that the Member sexually abused [the Patient] and that the sexual abuse consisted of or included one or more of the sexual conduct listed in section 51(5)(3) of the Code, the Panel is required by it to reprimand the Member and revoke her certificate of registration. These are mandatory penalty terms, which the Panel orders.

These are minimum mandatory penalty terms and do not preclude the Panel from making other orders under section 51(2) of the Code including reimbursement to the College for funding provided to [the Patient] of up to $5,000.00 if he accesses the fund for therapy or counselling. The Panel hereby makes that order.

The Panel considered the fact that public protection is paramount to any penalty imposed upon a member and that this penalty is appropriate as it accomplishes this objective while communicating to the membership at large that this type of conduct will not be tolerated. Sexual abuse is clearly unprofessional and contrary to the expectations of patients, employers and the public. This type of egregious conduct is disgraceful, dishonourable and unprofessional which shames the Member and the profession.

The Panel’s primary concern is public protection, which is achieved by the immediate revocation of the Member’s certificate of registration. The revocation of the Member’s certificate of registration and the oral reprimand provides specific deterrence. This penalty achieves general deterrence through the revocation of the Member’s certificate of registration, which will send a strong message to members of the profession that there are serious consequences for abuse of patients/clients, and boundary violations of the nurse-client relationship.

The Member chose not to participate in this process. She has offered no explanation and has shown no insight into her conduct or behaviour. As a result, the Panel has no mitigating factors to consider. Given that revocation is mandatory, the Panel did not need to consider rehabilitation.

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

I, Sherry Szucsko-Bedard, RN, sign this amended decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.