DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

Transcription

1 DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO PANEL: Denise Dietrich, RPN Chairperson Monica Seawright, RPN Member Lori McInerney, RN Member Shamsul Islam Public Member David Bishop Public Member BETWEEN: COLLEGE OF NURSES OF ONTARIO ) MARIE HENEIN for ) College of Nurses of Ontario ) - and - ) ) JOE ADELMAN ) NO REPRESENTATION Registration No. IB03779 ) for Joe Adelman ) ) Heard: October 3, 2005 DECISION AND REASONS This matter came on for hearing before a panel of the Discipline Committee on October 3, 2005 at the College of Nurses of Ontario (the College ) at Toronto. The Allegations Counsel for the College informed the panel that allegation #1 had been withdrawn. The panel was concerned that the Member may not have understood the difference between withdrawal and dismissal of allegations. College counsel then clarified that allegation #1 would be dismissed rather than withdrawn since the College did not intend to pursue allegation #1 in the future. The allegation against Joe Adelman (the Member ) as stated in the Amended Notice of Hearing dated June 28, 2005 was as follows: 2. You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, c. 32, as amended, and defined in subsection 1(37) of the Ontario Regulation 799/93, in that between January 1, 2002 and January 31, 2004, while working 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 in that you: (i) brought sexually explicit videotapes onto hospital premises; and/or

2 (ii) engaged in sexually explicit discussions such as discussions regarding your own sexual behaviours, your own sexual preferences, and sexual positions, with other staff members during work hours. Member s Plea The Member admitted to allegation #2 in the Notice of Hearing. The panel conducted a plea inquiry and a signed Plea Inquiry was submitted. The panel was satisfied that the Member s admission was voluntary, informed and unequivocal. Agreed Statement of Facts Counsel for the College advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts which provided as follows: THE MEMBER 1. Joe Adelman (the Member ) graduated as an R.P.N. from [ ] in He has been registered with the College of Nurses of Ontario (the College ) since The Member was hired by [the facility] on a full-time basis on March 24, He was terminated on February 23, 2004, as a result of the incidents described below. 3. The Member does not have a prior discipline history. There are no concerns with respect to his nursing practice. THE FACILITY 4. [The Unit] on which the Member worked is a medium secure forensic unit [ ]. It is a 20 bed unit with clients staying, on average, one to two years. 5. The program provides treatment, care and rehabilitation for a client population consisting of a variety of offenders under the Ontario Review Board who have been declared either unfit to stand trial or not criminally responsible. All clients have disposition orders from the Ontario Review Board detaining them on the unit. About half of the clients are diagnosed with some form of sexual disorder. BACKGROUND 6. One of the Member s colleagues wrote a letter to the manager of the unit on which the Member worked, outlining a number of concerns about the Member s behaviour at work. The manager spoke with other staff on the unit and learned that the concerns raised in the letter were echoed by other staff. VIDEO TAPES

3 7. The facility learned that a colleague, [Nurse A] had received a pornographic videotape from the Member. Although [Nurse A] had never asked the Member for any videos, he acknowledged that he did ask the Member to make him a CD-ROM of pornographic material from the internet. The Member gave both the videotape and the CD-ROM to [Nurse A] at his locker on the unit. Neither item was viewed at the facility. 8. At one point, [Nurse B] was also given a videotape by the Member, who said it was of strippers. [Nurse B] threw the tape out on the way home, as he did not want to have to explain the tape to his wife. [Nurse B] said he took the videotape from the Member in the first place because he felt awkward refusing it. 9. In December 2003, the Member again brought to the facility a home-made pornographic film, which he had made for another colleague. According to the Member, all such trades were pre-arranged. The Member would bring the materials in a bag, and would keep them in his locker until he could pass them to his colleagues. SEXUALLY EXPLICIT DISCUSSIONS 10. Four nurses on the unit heard the Member engage in inappropriate and uninvited sexually explicit conversation with staff. The tenor of the Member s discussions involved details about his own sexual life, such as how often he and his girlfriend engaged in sex and the positions they used. Some staff members would leave the nursing station when the Member spoke of his sexual exploits. The Member s use of inappropriate language was an ongoing concern for those who were offended by it. 11. The Member was told on one occasion that his language and behaviour were inappropriate. 12. [Nurse C] reported being approached by the Member following a staff party at which the Member had met his girlfriend. The Member stated that the girlfriend needed two men to keep her sexually happy, and he offered his assistance. On another occasion in late December 2003, the Member told staff that he had just masturbated during lunch while watching porn films at home. The Member also confided that when he worked on his previous unit at night he would masturbate occasionally when he took his breaks. 13. [Nurse D] received a vibrator from the Member around Christmas A few weeks later, the Member asked her if she had used his gift, and she responded that she had thrown it away. The Member was told by a colleague who was aware of the gift he had given to [Nurse D] that it was inappropriate. The Member brushed off his colleague s reproach. On a separate occasion the

4 Member said to [Nurse D], your husband is so lucky, a comment she understood was meant in a sexual way. ADDITIONAL INFORMATION 14. While the Member engaged in sexual discussions at work, he did not do so in the presence of clients. In addition, while some of the staff were disturbed by hearing about the Member s sexual antics, others engaged in conversation with him as willing participants and were not uncomfortable with what he said. Some colleagues, such as [Nurse D], viewed the Member s behaviour as joking around. Others never had the sense that the Member was making anyone feel uncomfortable. These comments were generally made at the nursing station, when clients weren t around. ADMISSIONS 15. The Member admits that he committed acts of professional misconduct in that Between January 1, 2002 and January 31, 2004, while working as a Registered Practical Nurse at [the facility], he 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 in that he: (a) (b) brought sexually explicit videotapes onto hospital premises; and/or engaged in sexually explicit discussions such as discussions regarding his own sexual behaviours, his own sexual preferences, and sexual positions, with other staff members during work hours. 16. The College seeks leave of the Discipline Committee to dismiss allegation #1 in the Notice of Hearing. Decision The panel deliberated and found that the Agreed Statement of Facts support a finding of professional misconduct. In particular, the panel finds that the Member committed an act of professional misconduct as alleged in paragraph #2 of the Notice of Hearing in that the Member engaged in conduct relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. Specifically the Member brought sexually explicit videotapes onto hospital premises and engaged in sexually explicit discussions such as discussions regarding the Members own sexual behaviours, sexual preferences, and sexual positions, with other staff members during work hours.

5 Penalty Counsel for the College advised the panel that a Joint Submission as to Penalty had been agreed upon. The Joint Submission as to Penalty invited the panel to make a penalty order: 1. Requiring the Member to appear before the panel to be reprimanded. 2. Directing the Executive Director to suspend the Member s certificate of registration for 30 days, to commence on the date that this Order becomes final. 3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member s certificate of registration: (a) (b) (c) Meet with an expert approved of by the Director of Investigations and Hearings (the Director ), at the Member s expense, to discuss the issues of boundaries with colleagues and sexual harassment, as well as the potential impact of the Member s conduct on clients within six months of this order becoming final. The expert shall provide the Director with a letter or report indicating that the Member has gained sufficient insight and understanding of these issues. The Member shall meet with the expert between one and four times, with the number of sessions to be determined by whether the Member has gained the insight referred to above, in the expert s opinion. The Member must notify the Director of the names, addresses, and phone numbers of all facilities or agencies at which he is directly employed to practice nursing, within 14 days of resuming practice, until the Member has completed 12 months of nursing practice following the date of this Order. Such notification must be in writing and sent by verifiable form of delivery (such as courier), and the Member must retain proof of delivery. Until the Member has completed 12 months of nursing practice following the date of this Order, the Member shall only practice nursing for an employer(s) who has acknowledged to the Director in writing that it has received a copy of the Discipline Committee s penalty order with its appendices, including the Notice of Hearing, Agreed Statement of Facts and Joint Submission on Penalty or, if available, the Discipline Committee s Decision and Reasons. The employer(s) must acknowledge receipt of the above within 14 days of the commencement of practice and must agree to notify the Director immediately upon receipt of any reasonable information that the Member is making inappropriate comments to colleagues or clients. Counsel for the College made submissions regarding the appropriateness of the Joint Submission as to Penalty. Aggravating factors included that:

6 it was inappropriate to bring the videos to the workplace the conduct was clearly offensive to colleagues which created a difficult work environment there was a series of incidents over a two year period Mitigating factors included that: the Member has no history of discipline with the College there has not previously been a concern with the Member s nursing practice the Member acknowledged responsibility for his actions and therefore demonstrated remorse The penalty provides specific deterrence to ensure that the Member does not engage in similar conduct. The penalty also provides for general deterrence. It sends a message to other members that the College takes these types of behaviours seriously, as it has a negative effect on colleagues and the workplace environment. The penalty also protects the public by clearly conveying that this behaviour is unacceptable. The Member submitted that the Joint Penalty submitted was fair and that he was in agreement with it. Penalty Decision The panel accepts the Joint Submission as to Penalty and accordingly orders: 1. The Member to appear before the panel to be reprimanded. 2. The Executive Director to suspend the Member s certificate of registration for 30 days, to commence on the date that this Order becomes final. 3. The Executive Director to impose the following terms, conditions and limitations on the Member s certificate of registration: a. Meet with an expert approved of by the Director of Investigations and Hearings (the Director ), at the Member s expense, to discuss the issues of boundaries with colleagues and sexual harassment, as well as the potential impact of the Member s conduct on clients. The expert shall provide the Director with a letter or report indicating that the Member has gained sufficient insight and understanding of these issues. The Member shall meet with the expert between one and four times, with the number of sessions to be determined by whether the Member has gained the insight referred to above, in the expert s opinion. b. The Member must notify the Director of the names, addresses, and phone numbers of all facilities or agencies at which he is directly employed to practice nursing, within 14 days of resuming practice, until the Member has completed 12 months of nursing practice following the date of this Order. Such notification must be in writing and

7 sent by verifiable form of delivery (such as courier), and the Member must retain proof of delivery. c. Until the Member has completed 12 months of nursing practice following the date of this Order, the Member shall only practice nursing for an employer(s) who has acknowledged to the Director in writing that it has received a copy of the Discipline Committee s penalty order with its appendices, including the Notice of Hearing, Agreed Statement of Facts and Joint Submission on Penalty or, if available, the Discipline Committee s Decision and Reasons. The employer(s) must acknowledge receipt of the above within 14 days of the commencement of practice and must agree to notify the Director immediately upon receipt of any reasonable information that the Member is making inappropriate comments to colleagues or clients. The panel concluded that the penalty addresses both specific and general deterrence. The panel wishes to deliver a strong message to the profession. This will assure the public that this type of behaviour will not be tolerated. The panel accepted the Joint Submission on Penalty given that it meets the requirements of both general and specific deterrence, as well as remediation. I, Denise Dietrich, 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 as listed below. Chairperson Date Panel Members: Monica Seawright, RPN Lori McInerney, RN Shamsul Islam, Public Member David Bishop, Public Member