College of Nurses of Ontario v. Melesa Narain, 2024 ONCNO 26517 — College of Nurses of Ontario Discipline Committee | minicounsel

PANEL: Michael Hogard, RPN Chairperson Ian McKinnon Public Member Matthew Secord, RN Member Kimberly Wagg, RPN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JEAN-CLAUDE KILLEY for ) College of Nurses of Ontario

and - )

MELESA NARAIN ) CAREY O. BLAKE Paralegal for Registration No. AI121834 ) Melesa Narain ) CHRISTOPHER WIRTH ) Independent Legal Counsel ) Heard: January 4, 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 January 4, 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 name(s) of the patient(s), or any information that could disclose the identity(ies) of the patient(s), referred to orally or in any documents presented at the Discipline hearing of Melesa Narain.

The Panel considered the submissions of the College and the Member’s Legal Representative and decided that there be an order preventing public disclosure and banning the publication or broadcasting of the name(s) of the patient(s), or any information that could disclose the identity(ies) of the patient(s), referred to orally or in any documents presented at the Discipline hearing of Melesa Narain.

The Allegations

The allegations against Melesa Narain (the “Member”) as stated in the Notice of Hearing dated November 30, 2023 are as follows:

IT IS ALLEGED THAT:

You have committed an act of professional misconduct as provided by subsection 51(1)(b.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that, while practising as a Registered Practical Nurse at Neworld Medical Detox Clinic (the “Facility”), you sexually abused a patient, and in particular:

a. between about July 19, 2020 and August 10, 2020, you engaged in behaviour or remarks of a sexual nature, and/or touching of a sexual nature, with Patient 1, including kissing;

b. between about November 1, 2020, and November 6, 2020, you engaged in behaviour or remarks of a sexual nature, and/or touching of a sexual nature, with Patient 2, including kissing;

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 practising as a Registered Practical Nurse at Neworld Medical Detox Clinic (the “Facility”), you contravened a standard of practice of the profession or failed to meet a standard of practice of the profession, and in particular:

a. between about July 19, 2020 and August 10, 2020, you engaged in a personal and/or romantic relationship with Patient 1, including sharing your personal phone number with Patient 1, engaging in personal text, audio, and/or video communication with Patient 1, and/or kissing Patient 1;

b. between about November 1, 2020 and November 6, 2020, you engaged in a personal and/or romantic relationship with Patient 2, including sharing your personal phone number with Patient 2, and/or kissing Patient 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(37) of Ontario Regulation 799/93, in that while practising as a Registered Practical Nurse at the Facility, 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, as follows:

Member’s Plea

The Member admitted the allegations set out in paragraphs #1(a), (b), #2(a), (b), #3(a) and (b) 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 admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

College Counsel and the Member’s Legal Representative advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which as amended reads, unedited, as follows:

THE MEMBER

The Member initially registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on January 1, 2019.
The Member was employed at the Neworld Medical Detox Centre in Halton Hills, Ontario (“Facility”) from September 1, 2019 until April 30, 2021, when she was terminated for the incidents described below.
The Member is not currently employed as a nurse.
The Member has no prior discipline history with CNO.

THE FACILITY

The Facility is a 6-bed treatment clinic that offers tailored in-patient medical rehabilitation programs to adults experiencing substance use disorders, including alcohol, prescription medication, opioid and illicit drug addictions. Most patients stay at the Facility for an average of 5 to 9 days.
Given the concurrence of substance use disorders and mental health conditions, patients at the Facility can experience comorbidities that make them extremely vulnerable to relapse of various disorders when admitted to residential treatment for addictions. However, not all mental health conditions are necessarily known to staff because most of the information gathering is based on patient self-report.
While the Facility employs 6 or 7 nurses in total, there is typically only one registered nurse on site at a time.
At all material times, the Member was employed as a staff RPN at the Facility, working both day and night shifts. As a result, the Member was often the only registered nurse on site during shifts.
The Member’s primary responsibilities were counselling patients and administering medications.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Personal, Romantic and Sexual Relationship with Patient 1

Patient 1 was a [ ]-year-old male in-patient at the Facility from July 19, 2020 to August 10, 2020. Patient 1 was diagnosed with a methadone addiction. Patient 1 was married and was expecting the birth of [a] child while in residential treatment at the Facility.
In or around July 2020, the Member told a Facility colleague that she had a secret to share. The Member stated that she “liked” Patient 1, and that Patient 1 reciprocated these romantic feelings.
The Member remarked that “it was big” when discussing Patient 1’s penis because the Member stated that Patient 1 showed it to her.
The Member scrolled through a series of messages on her phone to demonstrate for her colleague how many messages Patient 1 and the Member were exchanging. The Member told another colleague that she and Patient 1 discussed “everything Hope’s dreams their futures” (sic).
The Member “made out and kissed [Patient 1] several times while at the clinic”.
The Member and Patient 1 planned to have sex when he was discharged from the Facility.
When Patient 1 was discharged from the Facility, the Member and Patient 1 continued exchanging text messages, speaking on the phone, and communicating through FaceTime.
Patient 1 eventually discontinued corresponding with the Member.
The Member expressed to a colleague that she was heartbroken because she had fallen in love with Patient 1 and he “broke her heart”.

Personal, Romantic and Sexual Relationship with Patient 2

Patient 2 was a [ ]-year-old male in-patient at the Facility from November 1, 2020 to November 6, 2020. Patient 2 was enrolled in the opioid treatment program at the Facility in response to an Oxycontin addiction following surgery. Patient 2 was “happily married with [ ] children”.
The Member triaged Patient 2 on November 1, 2020. She completed his enrolment forms, medication plan, and opioid detoxification order.
At some point after admission, the Member asked a colleague whether they thought Patient 2 was “hot” or “good looking”.
The Member divulged that she and Patient 2 had mutual romantic feelings.
While the Member was conducting a room check during one of her medication rounds at the Facility, Patient 2 told her that she was “sexy” and asked her to feel “how big he was”, in reference to his erection.
If the Member were to testify, she would state that Patient 2 asked her to touch his penis but she did not do so.
The Member and Patient 2 kissed, “cuddled and fooled around” in his room.
The Member and Patient exchanged personal phone numbers with the purpose of keeping in touch both during Patient 2’s stay as an in-patient at the Facility, as well as post-discharge.
At some point afterward, the Member told a colleague that Patient 2 “wasn’t really her type” but that she was using him to “get over” Patient 1.
If the Member were to testify, she would state that she did not contact Patient 2 after he was discharged from the Facility.

CNO STANDARDS

CNO’s standards of practice set out specific expectations for nurses across Ontario. These published standards inform nurses of their accountabilities and apply to all nurses regardless of role, job description and practice setting.
The standards are authoritative statements that set out the legal and professional basis of nursing practice. These standards are intended to strengthen public confidence in CNO’s high expectations regarding the conduct, comportment, and competency of its members.

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 consist of six principles including:

a. Nurses respect the dignity of patients and treat them as individuals;

b. Nurses work together to promote patient well-being;

c. Nurses maintain patients’ trust by providing safe and competent care;

d. Nurses work respectfully with colleagues to best meet patients’ needs;

e. Nurses act with integrity to maintain patients’ trust; and

f. Nurses maintain public confidence in the nursing profession.

Regarding the principle requiring nurses to act with integrity to maintain patients’ trust, CNO’s Code of Conduct provides that:

a. Nurses maintain professional boundaries with patients; and

b. Nurses do not engage in any sexual relationship with patients while caring for them. This law stays in effect for one year after the end of the nurse-patient relationship.

In addition, 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.

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 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 actions such as ensuring their practice is consistent with CNO’s standards of practice and guidelines as well as legislation.
CNO’s Professional Standards further provides that ethical nursing includes acting with integrity, honesty and professionalism in all dealings with the patient and other health care team members. A nurse demonstrates having met this standard by actions such as identifying ethical issues and communicating them to the healthcare team.
CNO’s Professional Standards also provides, in relation to the therapeutic nurse-patient relationship, that a nurse demonstrates this standard by:

a. Maintaining boundaries between professional therapeutic relationships and non-professional personal relationships;

b. Ensuring [patients’] needs remain the focus of nurse-[patient] relationships;

c. Ensuring his or her personal needs are met outside of the therapeutic nurse-[patient] relationships; and

d. Recognizing the potential for [patient] abuse.

In addition, CNO’s Professional Standards states that a nurse demonstrates leadership by actions such as role-modelling professional values, beliefs and attributes when interacting with colleagues, not just direct members of a healthcare team.

Therapeutic Nurse-Client Relationship Standard

CNO’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) contains four standard statements which 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 defines a boundary in the nurse-patient relationship as “the point at which the relationship changes from professional and therapeutic to unprofessional and personal.” CNO’s TNCR Standard places the responsibility for establishing and maintaining the limits and boundaries in the therapeutic nurse-patient relationship on the nurse. CNO’s TNCR Standard provides that:

Crossing a boundary means that the care provider is misusing the power in the relationship to meet his/her personal needs, rather than the needs of the [patient], or behaving in an unprofessional manner with the [patient].

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

a. Setting and maintaining the appropriate boundaries within the relationship, and helping [patients] understand when their requests are beyond the limits of the therapeutic relationship;

b. Being aware of their verbal and non-verbal communication style and how [patients] might perceive it;

c. Ensuring that the nurse-[patient] relationship and nursing strategies are developed for the purpose of promoting the health and well-being of the [patient] and not to meet the needs of the nurse, especially when considering self-disclosure;

d. Continually clarifying their role in the therapeutic relationship, especially in situations in which the [patient] may become unclear about the boundaries and limits of the relationship; and

e. Consulting with colleagues and/or the manager in any situation in which it is unclear whether a behavior may cross a boundary of the therapeutic relationship.

CNO’s TNCR Standard requires nurses to protect the patient from harm by ensuring that abuse is prevented or stopped and reported. With respect to protecting the patient from abuse, a nurse demonstrates having met the TNCR Standard by actions such as:

a. not entering a friendship, or a romantic, sexual or other personal relationship with a [patient] when a therapeutic relationship exists; and

b. not engaging in behaviors with a [patient] or making remarks that may reasonably be perceived by other nurses and/or others to be romantic, sexually suggestive, exploitive and/or sexually abusive (for example, spending extra time together outside of the [patient]’s care plan).

CNO’s TNCR Standard defines abuse as:

[T]he misuse of the power imbalance intrinsic in the nurse-[patient] relationship. It can also mean the nurse betraying the [patient]’s trust or violating the respect or professional intimacy inherent in the relationship, when the nurse knew, or ought to have known the action could cause, or could be reasonably expected to cause physical, emotional or spiritual harm to the [patient].

CNO’s TNCR Standard provides that abuse may be verbal, emotional, physical, sexual, financial, or take the form of neglect. The TNCR Standard further provides that sexual abuse includes, but is not limited to, touching of a sexual nature or touching that may be perceived by the patient or others to be sexual as well as sexual intercourse or other forms of sexual contact with a patient.
Members are also expected to recognize the need for increased vigilance in maintaining appropriate boundaries in certain practice settings. Clear communication, such as continually clarifying one’s role in the relationship, helps clarify boundaries for patients who may become uncertain about the limits of their relationship with the member.
As a matter of the standards of practice regarding boundaries more generally, and although not expressly set out in the TNCR Standard, a “patient” is not necessarily limited to those individuals to whom a nurse is directly assigned, but also those individuals to whom a nurse is part of the circle of care.
The Member admits and acknowledges that she did not take steps to clarify with either Patient 1 or Patient 2 that the nurse-patient relationship was no longer therapeutic. Moreover, rather than remove herself from the care team or attempt to re-establish firm boundaries with two extremely vulnerable patients, she escalated her personal and romantic relationship while Patient 1 and Patient 2 were in-patients at the Facility, which including kissing and sharing personal information.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1-3 of the Notice of Hearing, as described in paragraphs 10 to 47.
The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1(a) and 1(b) of the Notice of Hearing, and that she sexually abused Patient 1 and Patient 2 when she engaged in behaviour, remarks and touching of a sexual nature with Patient 1 and Patient 2, as described in paragraphs 10 to 47.
The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 2(a) and 2(b) of the Notice of Hearing, and that she contravened a standard of practice of the profession when she engaged in personal and romantic relationships with Patient 1 and Patient 2, as described in paragraphs 10 to 47.
The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 3(a) and 3(b) of the Notice of Hearing, as described in paragraphs 10 to 47, and that her conduct was disgraceful, dishonourable and unprofessional.

Decision

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

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs #1(a), (b), #2(a), (b) and #3(a) and (b) of the Notice of Hearing. As to allegations #3(a) and (b), 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 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 #1(a) and (b) in the Notice of Hearing are supported by paragraphs 10 to 47 and 49 in the Agreed Statement of Facts. The Member admitted that while employed as a Registered Practical Nurse at Neworld Medical Detox Clinic (the “Facility”), she committed acts of professional misconduct and sexually abused Patient 1 and Patient 2 when she engaged in behaviour, remarks and touching of a sexual nature, as described in paragraphs 10-47.

Allegations #2(a) and (b) in the Notice of Hearing are supported by paragraphs 10 to 47 and 50 in the Agreed Statement of Facts. The Member admitted that she contravened a standard of practice of the profession when she engaged in personal and/or romantic relationships with Patient 1 and Patient 2. The Panel finds the Member’s conduct breached the Code of Conduct, the Professional Standards and the Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) by violating boundaries and sexually abusing Patient 1 and Patient 2. The Member did not act with integrity, honesty and respect for her patients or her profession as she is required to by the College’s standards. Rather, the Member acted to meet her own personal needs.

Allegations #3(a) and (b) in the Notice of Hearing are supported by paragraphs 10 to 47 and 51 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in engaging in a personal and/or romantic relationship with her patients was clearly relevant to the practice of nursing. It was unprofessional as it demonstrated a serious, egregious and persistent disregard for her professional obligations.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit as these were extremely vulnerable patients and instead of removing herself from their care team and re-establishing firm boundaries, she escalated her personal and/or romantic relationships with Patient 1 and Patient 2. The Member knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional.

Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension, the profession. The Member demonstrated disgraceful conduct by repeatedly entering into personal and/or romantic relationships with Patient 1 and Patient 2 who were vulnerable during a professional nurse-patient relationship. This conduct casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

Penalty

College Counsel and the Member’s Legal Representative 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 3 months of the date that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for 10 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) Within 6 months from the date that this Order becomes final, or a longer period as approved by CNO, at the Member’s own expense, the Member will successfully complete the CPEP PROBE: Ethics and Boundaries Program (the “PROBE program”). The Member must receive a grade of “unconditionally passed”. The Member must provide proof of successful completion to CNO;

b) After the Member has successfully completed the PROBE program and provided proof of successful completion to CNO, the Member will then attend a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at the Member’s own expense and within 6 months from the date the Member provides proof of successful completion of the PROBE program to CNO. If the Expert determines that a greater number of sessions are required, the Expert will advise CNO regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 12 months from the date the Member provides proof of successful completion of the PROBE program to CNO. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by CNO in advance of the meetings;

ii. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules and decision tools (where applicable):

Code of Conduct, and
Therapeutic Nurse-Client Relationship Standard;

iv. Before the first meeting, the Member reviews and completes the CNO’s self-directed learning package, One is One Too Many, at the Member’s own expense, including the self-directed Nurses’ Workbook;

v. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the completed Reflective Questionnaires and Nurses’ Workbook;

vi. The subject of the sessions with the Expert will include:

the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;

vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:

the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into the Member’s behaviour;

viii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on the Member’s certificate of registration;

c) For a period of 36 months from the date the Member returns to the practice of nursing, the Member will notify the Member’s employers of the decision. To comply, the Member is required to:

i. Inform any employer of the decision at least 14 days before commencing or prior to resuming employment in any nursing position;

ii. Ensure that CNO is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

iii. Provide the Member’s employer(s) with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;

iv. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:

that they received a copy of the required documents, and
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and,

d) The Member shall not practice independently in the community for a period of 18 months from the date the Member returns to the practise of nursing.

Requiring the Member to reimburse the College for funding provided for Patient 1 and Patient 2, under the program required by s. 85.7 of the Health Professions Procedural Code, up to the amount of $5,000 for each patient, if Patient 1 and/or Patient 2 access the fund.
All documents delivered by the Member to CNO, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Penalty Submissions

Submissions were made by College Counsel.

The aggravating factors in this case were:

The Member’s actions were egregious;
The Member’s conduct reflected disregard for the Professional Standards of Practice;
The Member’s conduct violated patient trust.

The mitigating factors in this case were:

The Member has no prior disciplinary history with the College;
The Member pled guilty to all allegations and entered into an Agreed Statement of Facts and a Joint Submission on Order with the College; and
The Member is remorseful of her actions.

The proposed penalty provides for general deterrence through:

The 10-month suspension of the Member’s certificate of registration.

The proposed penalty provides for specific deterrence through:

The oral reprimand;
The 10-month suspension of the Member’s certificate of registration; and
The reimbursement by the Member to the College for funding as it relates to the program required by s. 85.7 of the Health Professions Procedural Code for each patient, if they access the fund.

The proposed penalty provides for remediation and rehabilitation through:

The completion of the CPEP PROBE: Ethics and Boundaries Program;
A minimum of 2 meetings with a Regulatory Expert; and
Review of the College’s publications.

Overall, the public is protected through:

The 36 months of employer notification; and
The 18 months of no independent practice in the community.

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. Hohban (Discipline Committee, 2020): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member engaged in professional misconduct and failed to respect the therapeutic boundaries of the nurse patient relationship by engaging in touching of a sexual nature and making remarks of a sexual nature. The penalty included an oral reprimand, a 6-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert and 18 months of employer notification.

CNO v. Ramos (Discipline Committee, 2020): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member engaged in professional misconduct and failed to respect the therapeutic boundaries of the nurse patient relationship by engaging in touching of a sexual nature and making remarks of a sexual nature. The penalty included an oral reprimand, an 18-month suspension of the member’s certificate of registration, a minimum of 2 meetings with a Regulatory Expert and 24 months of employer notification.

CNO v. Franklin (Discipline Committee, 2020): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member engaged in professional misconduct and failed to respect the therapeutic boundaries of the nurse patient relationship by engaging in a romantic personal relationship with a patient that demonstrated exploitation of power imbalance. The penalty included an oral reprimand and revocation of the member’s certificate of registration.

Submissions were made by the Member’s Legal Representative.

The Member’s Legal Representative submitted that he agreed with College Counsel’s submissions and asked the Panel to accept the Joint Submission on Order. He further submitted that the Member was remorseful, attended the hearing and was keen to re-enter into practise.

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.
The Executive Director is directed to suspend the Member’s certificate of registration for 10 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.
The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

i. The Expert has expertise in nursing regulation and has been approved by CNO in advance of the meetings;

ii. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules and decision tools (where applicable):

Code of Conduct, and
Therapeutic Nurse-Client Relationship Standard;

vi. The subject of the sessions with the Expert will include:

the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;

vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:

the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into the Member’s behaviour;

c) For a period of 36 months from the date the Member returns to the practice of nursing, the Member will notify the Member’s employers of the decision. To comply, the Member is required to:

i. Inform any employer of the decision at least 14 days before commencing or prior to resuming employment in any nursing position;

ii. Ensure that CNO is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

iii. Provide the Member’s employer(s) with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;

iv. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:

that they received a copy of the required documents, and
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and,

d) The Member shall not practice independently in the community for a period of 18 months from the date the Member returns to the practise of nursing.

Requiring the Member to reimburse the College for funding provided for Patient 1 and Patient 2, under the program required by s. 85.7 of the Health Professions Procedural Code, up to the amount of $5,000 for each patient, if Patient 1 and/or Patient 2 access the fund.
All documents delivered by the Member to CNO, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Reasons for Penalty Decision

The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and where appropriate, rehabilitation and remediation. The Panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

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

The Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection through the Joint Submission on Order.

The penalty is also in line with what has been ordered in previous cases in similar circumstances.

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.