DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

Transcription

1 DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO This decision was followed by an appeal, the results of which can be found at the end of this document. PANEL: Jim Attwood, RN Chairperson Joanne Furletti, RN Member Monica Seawright, RPN Member Sophie Young Public Member BETWEEN: ) ) CAROLINE ZAYID for COLLEGE OF NURSES OF ONTARIO ) College of Nurses of Ontario ) - And - ) ) SHANE ANTHONY DUVAL ) ROBERT STEPHENSON for Registration No ) Shane Anthony Duval ) ) INDENDENT LEGAL COUNSEL ) Brian Gover, Chris Wirth, Nancy ) Spies and Scott C. Hutchison ) ) Heard: September 15-16, 2003 ) November 17-20, 2003 ) March 8, 2004 ) May 17-19, 2004 ) June 21 & 23, 2004 ) May 10-11, 2005 DECISION AND REASONS This matter came on for hearing before a panel of the Discipline Committee on September 15-16, 2003, November 17-20, 2003, March 8, 2004, May 17-19, 2004, and June 21 & 23, 2004 at the College of Nurses of Ontario ( the College ) at Toronto. The Allegations 1. Shane Anthony Duval ( the Member ) was alleged to 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 paragraph 1.1 of Ontario Regulation 799/93, in that from in or about the month of February, to early May, 2001, while he was employed as a Registered Nurse at [ ]

2 Hospital in [ ], he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that he engaged in a personal and/or sexual relationship with a former patient, [the client], within days of [the client s] discharge from the psychiatric assessment unit at [the] Hospital, which relationship included his doing the following: (a) (b) (c) (d) (e) (f) going to a movie with [the client]; giving a birthday card to [the client]; attending family functions with [the client]; sleeping with [the client]; giving [the client]a gift; Engaging in sexual conduct including sexual intercourse and/or fellatio with [the client]. 2. The Member was also alleged to 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 paragraph 1.37 of Ontario Regulation 799/93, in that from in or about the month of February, to early May, 2001, while he was employed as a Registered Nurse at [the] Hospital in [ ], he engaged in conduct or performed an act or acts relevant to the practice of nursing that, having regard to all of the circumstances, would reasonably be regarded by Members as disgraceful, dishonourable or unprofessional, in that he engaged in a personal and/or sexual relationship with a former patient, [the client], within days of [the client s] discharge from the psychiatric assessment unit at [the] Hospital, which relationship included his doing the following: (a) (b) (c) (d) (e) (f) going to a movie with [the client]; giving a birthday card to [the client]; attending family functions with [the client]; sleeping with [the client]; giving [the client]a gift; Engaging in sexual conduct including sexual intercourse and/or fellatio with [the client].

3 Member s Plea The Member denied the allegations set out in the Notice of Hearing. Overview The allegation is that the Member engaged in a personal and/or sexual relationship with a former psychiatric patient within days of [the client s] discharge. This conduct is considered to be a breach of professional standards, and would be regarded by members as disgraceful, dishonourable or unprofessional. The alleged relationship took place between February 14, 2001 and mid May The Evidence The panel heard testimony from 16 witnesses, one of which was recalled and admitted 25 exhibits into evidence. Witnesses for the College Witness #1 [the client] [The client] was [ ] 19 year[s] old [ ] living with [ ] parents [and siblings, and] was admitted to the [psychiatric unit] at [the] Hospital following an aspirin overdose on [ ], 2001(Exhibit #2). [The client] had never been a patient on the unit prior to this admission. [The client] met the Member for the first time while [ ] a patient on the unit. [The client] said that he was a nurse who talked to [the client] about [the client s] problems and how to deal with them. He talked about himself, going to the stairs jogging and that [the client] should try it. [The client] liked him while [ ] a patient. [The client] claims [to have] made a personal phone call to the hospital after discharge to speak with the Member; [ ] he advised [the client] not to call him there because he would get into trouble and he would call [ ] later. [The client] didn t give him [a] phone number but he did call [ ] back. Following this contact they attended various social activities including movies [ ], hiking, day trip to [ ], and various Pub Nights. [The client] also alleged that he was a frequent visitor at [the client s] parent s home spending the night on numerous occasions. He also attended [family] birthday parties. [The client] alleged that they engaged in sexual activity within days of discharge and numerous times thereafter in [the client s] room, on the couch, and in his car. During cross-examination by Counsel for the Member, [the client] became emotional and [ ] didn t want to be here, requiring a short recess in order for the witness to compose [ ]self. [The client] stated that the relationship [with] the Member was a consensual relationship and good until early May 2001 when problems began to start. The witness was emotional at intervals in [ ] testimony but had a good recollection of events and [ ] was unwavering and consistent. The panel found the witness to be credible taking into

4 account that [the client] had moved on with [ ] life, was involved in other relationships and was not the person who had reported the Member to the College. Witness #2 [ ] [Witness 2] has been a friend of the [the client s] family for over 10 years. She testified that she was acquainted with the Member from family events at the [the client s] home but was not sure of the dates. The Member was introduced by [the client s] mother as [the client] s boyfriend. [Witness 2] used to play cards a lot with [the client] s parents at their house. When she went over to play cards, she saw the Member and [the client] holding hands and kissing while sitting on the couch watching television. The witness drew a sketch outlining the layout of the first floor of the [client] s residence (Exhibit #13). One day she observed the Member walk right into the kitchen while she was there visiting and make himself a sandwich without asking anyone. This behaviour shocked her. During cross-examination, she became irritable with Defense Counsel when he suggested that she was mistaken about her testimony regarding the layout of the [client] s residence first floor and the fact that she was actually able to see them holding hands and kissing. She testified that she saw him at the house six or seven times and was not sure how long he stayed. When questioned about whether or not the Member was sleeping at the house, or in [the client] s room, or on the couch, she said she didn t know. The panel found this witness to be credible because she had no personal interest in the outcome of the case and she was asked by the College to attend this hearing. She was forthright and consistent with her testimony. Witness #3 [ ] [Witness 3] is the mother of [the client]. [Witness 3] first met the Member at the hospital while [the client] was an inpatient on a psychiatric unit. Shortly after [the client] s discharge she saw him at the house and recognized him as one of [the client] s nurses. According to [the mother] s testimony the Member became increasingly familiar with the family as his day time visits began expanding into overnight stays. She went on to state that if he spent the night he would remain at the house the next day if he wasn t working The familiarity continued to the point that she found the Member and [the client] asleep in [the client] s bed on four separate occasions. Following the fourth incident she had her husband address the issue with the Member, telling him he had to sleep on the couch when ever he stayed over. He also attended both her husband s and [the client] s birthday parties (Exhibit #3A-B). [ ] [The mother] began to have concerns about their relationship because they were frequently fighting and the Member started rough playing with both [the client] and [the client s sibling].

5 The panel found [Witness 3] to be credible given the fact that she gave intimate and sensitive details of [the client] s relationship with the Member. She had nothing to gain and if anything provided testimony of a sensitive nature. Witness #4 [ ] [Witness 4] is the father of [the client]. [Witness 4] first met the Member at the hospital while [the client] was an inpatient on a psychiatric unit and didn t speak to the Member at that time. He met the Member again at the [family] home, not sure of the date and he was there often. At first he saw them sitting around talking at the house, then they hung out and watched movies. He understood their relationship to be [romantic]. He slept over, ate at the house, and bought [the client] gifts. He helped the Member fix his car once, changing the brake shoes. R.B. went on to recount how on one occasion he got up for work and he noticed that the Member was sleeping in [the client] s bed with her. He told [the client] that night that the Member could not sleep with [the client] again and that he had to sleep on the couch. He testified that the Member attended [the client] s birthday party and that he left to go to [ ]. [Witness 4] usually got home from work around six or seven p.m. and he never worked weekends. He admitted to having family problems at the time the allegations occurred. He witnessed play fighting between the Member and [the client], and other members of the family. He sometimes had to slow the play fighting down because it would get out of hand. [The father] went on to say that he and his wife decided that the Member was no longer welcome in the house as a result of his behaviour in their home. Even though [the client] begged [the] parents to change their minds about this matter they refused. One night the Member called many times leaving messages on the answering machine for [the client] and finally between one and two a.m. [the father] got out of bed and told [the client] to deal with it. [ ] He never saw the Member again until today. The panel found [Witness 4] to be credible given the fact that he gave straightforward and convincing testimony. He had nothing to gain and if anything provided testimony of a sensitive nature. Witness #5 [ ] [Witness 5] is the brother of [the client]. He first met the Member while [the client] was an inpatient in the psychiatric unit. He testified seeing the Member at the house every day or every other day. Often watching television with [the client] and the family. He stated that he did see them hugging and kissing, either in living room, kitchen or [the client] s bedroom. He recalled coming home one night to find them in the living room on the couch in the dark; they quickly jumped under the covers and covered up. He was told by the family that they were dating and what he seen in the house was consistent with that. He got along with the Member, had similar interests. When [the client] stopped seeing the Member, he never saw him again. The panel found that this witness was reliable, straightforward and precise in his testimony.

6 Witness #6 [ ] [Witness 6] said that she was [the client] s best friend. She knew the Member through [the client], met him when they picked her up to go see [the client s sibling] in the hospital [ ]. Witness recalls during this visit to the hospital, that rough play occurred and that the Member pushed [the client] up against the wall and put his hand around [the client s] neck; he said don t ever call me that again. Then she said that [the client] apologised and the incident stopped. She recalled seeing him at the [client s] house after that, witnessed them playing cards and watching movies. While watching movies, she saw them in each others arms and kissing a couple of times. [The client] said that they were [a couple] in front of the Member in [Witness 6] s house. The Member attended [the client] s birthday party in May, he brought [the client] to the birthday party, he socialized and then he left and came back in different clothes two hours later. She and her boyfriend, now her husband, went out with the Member and [the client] once to a pool hall. She recalled that the Member got a bit nasty with [the client] because [the client] wasn t picking the right ball, they had a short evening and they went home. Counsel for the Member asked the witness if she had any knowledge with regards to an allegation that [the client] had made to [the client s] therapist that [Witness 6] s husband, boyfriend at the time, had tried hitting on [the client]. The witness was surprised as she had no previous knowledge of such allegation. Counsel also asked the witness if she knew about the allegation that her husband had tried to rape [the client s sibling]. The witness was aware of this allegation but stated that there was no substance to the allegation. Allegations of a sensitive nature about the witness s husband, [the client] and [the client s sibling] were disclosed by Counsel for the Member during cross-examination. The witness had no real interest in assisting [the client] based on these allegations. On the contrary, she would have every reason to have discredited the testimony of [the client] and her family. Therefore the panel found the witness to be credible. Witness #7 [ ] [Witness 7] met [the client] at [ ] a supermarket, in [ ] [Witness 7] and [the client] worked [there]. They began dating [ ] after the alleged relationship with the Member. [Witness 7] never met the Member. [Witness 7] heard about the Member when [Witness 7] started dating [the client]. The panel found the witness credible in that [Witness 7 s] testimony was brief and concise in regards to [Witness 7 s] relationship with [the client] in [ ] Witness #8 Recall Witness: [the client] Prosecution questioned [the client] s recollection of [ ] meeting with [Witness 10], [a] therapist on March 30, 2001(Exhibit #14 Assessment Notes). [The client] testified that the assessment

7 notes of [the therapist] were accurate except for the fact that the Member was not a high school student because [the client] lied to protect him. The witness clarified that [the client] knew [Witness 7] since February, but did not start dating him until after [having] stopped seeing the Member (Exhibit #14, p. 708). Under cross examination, [the client] testified that [the client] first told [the therapist] about the Member on October 30, 2001, [ ] because it was bothering [the client]. [The client] admits to not keeping the relationship a secret but admitted to lying to [the therapist] to protect the Member, so that he would not lose his job. [The client] testified that the assessment notes of [the therapist] were accurate except for the fact that the Member was not a high school student. [The client] was not the one who reported the matter to the College but that it was [the therapist]. [The client] did testify that [the client] actively was involved in gathering information for the College during their investigation. The panel once again found [the client] to be credible in that [the client] had agree to return to the hearing and further testified under sworn oath. Witness #9 [ ] [Witness 9] is a Registered Nurse who is currently working at the [ ] Hospital in [ ]. Previously she was the acting manager of the psychiatric unit where [the client] was an inpatient. [Witness 9] stated that she knew the Member; she hired him as a part time nurse on the unit in question. The psychiatric unit consisted of [a] short stay [ ] unit [ ] and a twenty-five bed unit for patients requiring longer hospitalization. Patients in the [short stay] unit were suicide attempts, mostly from Emergency. Goals of the unit are that there is a smaller nurse patient ratio for assessment, medication adjustments and follow up planning. [Witness 9] remembered that the Member s phone number changed numerous times during his employment. The Member s resume had three different phone numbers, two of which were crossed out (Exhibit # 15). He was on orientation from January 15 th to 30 th, 2001; he called in sick on January 31, He was also scheduled for computer training on January 6 th but ended up working on the unit. He ended up doing his computer training on January 8, 2001(Exhibit # 11). The orientation period for new hires is three to four weeks. During orientation they are usually buddied with someone. The witness testified that [the client] was assigned to the Member as indicated in the unit assignment sheet (Exhibit # 12, p. 307). Assigned nursing staff is expected to give medications, hear reports, attend team meetings, and discuss treatment plan and plan for the day. There is an expectation of one to one interview with the patient, attend family meetings and work on discharge planning. The Member was [the client] s assigned nurse while [the client] was an inpatient as documented by him in [the] health record (Exhibit # 2). The witness went on to say that it is not unusual on this particular unit to have some casual interaction with all patients on the unit during the day even if you re not assigned to the patient.

8 The panel found the witness to be credible given that she was professional, straightforward and matter of fact. Witness # 10 [ ] [Witness 10] is a Registered Nurse who works at [ ]. She works with the physicians [ ] providing counselling to mental health patients. [Dr. A] is [the client] s family physician, and one of the physicians working at [ ]. The first time [Witness 10] saw [the client] was March 30, It was [the client] s first episode of depression and [the client] had features of social anxiety. The plan was to provide supportive therapy in consultation with [Dr. A] and they have continued. October 30, 2001 [the client] told [the therapist] [about being] involved with [the] treating nurse, the Member, and that [they] had a sexual encounter a couple of days after [the client] s discharge from the hospital. She testified that [the client] was upset and tearful when [the client] told her about the Member (Exhibit # 14, p. 102). [The therapist] discussed this information with her colleagues. She then advised [Witness 9] of the [ ] Unit. As a result of the disclosure, [the therapist] contacted the College the following day, and formally reported the Member to the College in writing on November 5, 2001(Exhibit # 16). Thereafter, the College contacted the witness requesting her to provide all her notes and documentation related to [the client] (Exhibit # 17). Additional correspondence between the College and the witness continued until the College completed its investigation (Exhibit # 18, 19, 20, 21, & 22). In cross-examination she testified that she was not qualified to make a diagnosis and that on March 30, 2001 was the first time she met [the client]. She stated that she reported the allegations to the College because she was mandated. The panel found that the witness was calm, sincere and had a good recollection of the events. The witness had exercised due diligence given the fact that she consulted her colleagues immediately after the disclosure of the alleged relationship [the] client had with a Member. Witness #11 [Dr. B] Council for the College presented [Dr. B] as an expert witness in Psychiatric Nursing, specifically on Boundary issues and Nurse/Client relationships. A copy of [Dr. B] s CV was submitted detailing extensive expertise in this area (Exhibit #23). [Dr. B] has been an expert witness for the College since 1995 having appeared in a number of cases. [Dr. B] has also appeared as an expert witness in Civil, Criminal and Grievance hearings. In these cases, she was appeared as an expert in Psychiatric Nursing, impact of Sexual abuse, and on the scope of professional practice and the nature and limits of the Nurse/Patient relationship. Most but not all cases involved clarification of boundaries of the professional relationship and include topics such as touch, sexual abuse and social contact. [Dr. B] has been consulted by numerous professional organizations and regulating bodies of other health professions on these topics.

9 [Dr. B] s credentials were accepted by both counsel, and the panel. [Dr. B] was qualified to testify as an expert in the field of Psychiatric Nursing, specifically on Boundary issues and Nurse/Client relationship. [Dr. B] testified that the role of psychiatric nursing is the establishing of a therapeutic relationship with the client grounded in respect, empathy, and positive regard to help the client move forward. [Dr. B] stated that after a suicide attempt, safety is the number one priority. The goals of the nurse patient relationship is ensuring safety and assisting the client in dealing with the stressors that may have caused the behaviour. As a result, this is often an intense relationship where the client talks about very personal and intimate issues. This may be the first time that the patient perceives that they have been listened to. [Dr. B] testified that the nurse bears the responsibility to maintain the relationship as therapeutic, because the client may view the relationship as special and may make unreasonable demands on the nurse. The nurse must be cognizant of these possibilities and must maintain appropriate boundaries at all times. There is an inherent power imbalance where the client is extremely vulnerable and the nurse s job is to not exploit the client. The nurse must be proactive, ensuring that the relationship remains therapeutic. Counsel for the college presented [Dr. B] with a scenario similar to the one that was before the panel. Having heard this scenario, [Dr. B] testified that such a nurse was involved in a therapeutic relationship with the client. She explained that due to the small size of the unit, any nurse working there, would be involved in a therapeutic relationship with the clients. Given the scenario presented to [Dr. B], she stated that any client who contacted a nurse within a week of discharge and the nurse agreed to meet a former client outside of the hospital, [Dr. B] would hope that this nurse would have consulted with someone on the clinical team. She testified that if there was no consultation, and meetings of a social nature occurred between the nurse and the client, the nurse did not take the appropriate professional steps. [Dr. B] discussed the reasons for a one year moratorium between a therapeutic and a personal relationship. One of the concerns is that the psychiatric population is very vulnerable. When a nurse gets involved in a social relationship with a patient, it changes the availability of the care the patient may need in future admissions. The onus is on the professional to maintain the standards even if the patient is aware of the restrictions, and to put limits on the relationship. The nurse is expected to know the limits to impose. [Dr. B] was asked to assume that the nurse visited the client s home, went out to bars and attended family birthday parties. [Dr. B] testified that this is a violation of the College standards and puts the client at risk of harm. She stated that the Member was putting his interests ahead of the interests of the client. [Dr. B] was asked to assume that he stayed overnight in the client s home, slept in [the client s] bed with [the client], and ate at [the client s] house. [Dr. B] stated that there was nothing in these additional points which touches on a professional relationship. She sees it as an inappropriate

10 social relationship, exploitive of the client, given the recent hospitalization of the client. The behaviour does not conform to the standards of the profession. [Dr. B] testified that the gifts that the nurse exchanged, coupled with the other facts, indicate a fairly intense relationship. Nurses are generally not encouraged or supported in giving gifts to clients because it changes the nature of the therapeutic relationship. [Dr. B] stated that in her workshops she advocates that if the nurse is doing something that they feel necessary to not share with co-workers or supervisors, it suggests to me that they know that the relationship is inappropriate. Asking the client to not tell their therapist suggests that he knew it was wrong. Keeping such a secret also adds to the client s stress. [Dr. B] stated that if hugs and kisses between the nurse and client have been exchanged, and they are [a couple], this is a sexual romantic relationship and is in violation of the standards. Concerns arise about the impact on the client, since the relationship is not based on the normal process, since it started with a power imbalance. Engaging in sexual intercourse is in violation of standards as well. [Dr. B] testified that it does not matter who initiated the relationship, or whether it is consensual, it is the nurse s duty and responsibility to maintain the moratorium on the relationship. [Dr. B] was asked to assume that the client suffered from major depression. She testified that based on this assumption, the expectation would be that when the client first contacted the nurse on the unit, he would have sought advice, given the fact that he would have further professional contact with [the client] in the future, as depression is often a chronic disorder which requires frequent re-admissions. Cross-Examination Counsel for the Member presented [Dr. B] with a scenario that had no sexual contact between the nurse and his former client that the client was making the relationship up. Counsel for Member went on to state that the nurse was not in a social relationship with his former patient to meet his own needs. The nurse had his own living accommodations and did not stay overnight with his former client. The Member had a [romantic partner] at the relevant time. The Member did not initiate the contact, which was on a friendly social basis. The client/patient had designs on the Member and did not inform him of this fact; instead, [the client] indicated [the client] wanted to be friends with him. The Member told his former client that they can t date, and [the client] agreed. The client had been discharged and the therapeutic relationship was over when contact was made by the client. The relationship was not kept a secret from anyone. The Member was invited to the client s birthday party and he attended for approximately 30 minutes, brought [the client] and card, and left. No gifts were given by the Member to his former client. There are other psychiatric facilities in the community other than this [] unit. The client was not harmed. The client did not report anything to the College, [the client s] Mental Health worker

11 did. The client appeared unannounced, out of the blue at the nurse s doorstep and insisted on a relationship with the nurse, and he said no, he couldn t do it. [Dr. B] agreed that in the scenario presented by Counsel for the Member, the nurse did not commit sexual abuse as defined in the Standard for the Therapeutic Nurse-Client Relationship if there were no sexual relations (Exhibit # 24). However, [Dr. B] testified that even if the nurse did not participate in a sexual relationship, based on the scenario above there was still a violation of boundaries. [Dr. B] disagreed with Counsel for the Member, that participation in a sexual relationship is the only way to breach the standards of the profession. She agreed that different nurses have different views of social contact and boundaries, and the propriety of post discharge social contact can be a grey area. However, she testified that she finds it perplexing that a newly discharged client phones [a] former nurse on the unit, and the nurse fails to consult with his coworkers or his supervisor. [Dr. B] further testified that any psychiatric nurse would still consider a social relationship a violation of the standards. Assuming all the facts that Counsel for the Member presented on the relationship that the Member had with his former client, it was not in the client s best interests. [Dr. B] testified that, in her opinion, psychiatric nurses would consider such boundary violations as professional misconduct. The panel found this witness to be credible, knowledgeable, and informative in Psychiatric Nursing, specifically on Boundary Issues and Nurse/Client relationships which are relevant to the case before us. Witnesses for Defence Witness # 12 [ ] [Witness 12] [ ] claimed to be [the client] s best friend. He testified that he first met the Member when [the client] was in the hospital. He then met the Member at [the client] s house and he was introduced as a friend. [Witness 12] testified that he saw the Member at [the client] s house for the birthday parties and otherwise once a week between January and April 2001, the relevant time, depending on his work schedule. He denied seeing them touching or kissing and indicated that he understood they were just friends. [Witness 12] also admitted in cross-examination that the purpose of his visits was to see [the client s sibling] that he rarely went inside the house and that if he spoke to [the client] or [the client s sibling] it was because they happened to be around. [Witness 12] specifically testified that he and the Member left the father s birthday party together after only a short stay and before any cake was served. He volunteered that the father didn t like

12 to have cake. When confronted with Exhibit 3A he admitted that the Member was present and obviously stayed longer than [Witness 12] had suggested earlier. In cross-examination, [Witness 12] gave a very confused account of his work schedule but acknowledged that he usually did not visit the house on days that he worked, and gradually visited even less as he got involved with a girlfriend. He also admitted that by the time [the client s sibling] was admitted to hospital he hardly visited [the client] s home at all. He testified that he believed that [the client] was having a sexual relationship with [a co-worker]. On cross-examination, [Witness 12] admitted that he had no direct knowledge of this fact, but speculated that sexual relations may have occurred because he saw [the client] ride on [the coworker] s motorcycle once, and [the client] also went to his house once and possibly got home late. He had no evidence as to what occurred with [the co-worker]. [Witness 12] testified that [the client] was actually dating someone else other than the Member at the relevant time. He testified that [the client] was dating [two co-workers]. He testified that they both worked [ ]. He was unable to recall exactly when [the client] was dating these [people]. [Witness 12] testified that [the client] and [the client s sibling] smoked marijuana in their backyard, but he could not state when he saw this occur. The panel found that [Witness 12] s inconsistent testimony and extremely poor recall made his testimony less then credible. Witness # 13 [ ] [Witness 13] [ ] works as a supervisor of [a] physical plant [ ]. He testified that he first met the Member when they first moved in together [ ]. In the relevant time period [Witness 13] was neither working nor attending school. He described himself as enjoying College life. He testified that he went out to bars frequently with various people and could not recall much about such events. He testified that he was a binge drinker. In cross-examination, [Witness 13] did not recall going to the [ ] with his girlfriend, the Member and [the client] because it was a [ ] strip club. He said that they may have gone to [ ], which is very near [ ]. He said that he seen [the client] leave early that night, but admitted he could not be sure. With respect to the late night visit by [the client], [Witness 13] has no recollection of when that occurred but stated that the Member was not naked or drunk when he answered the door. It was after midnight when [the client] rang the doorbell and [Witness 13] testified that he could see who was at the door from where he was sitting in the living room.

13 [Witness 13] testified that the Member did have a [romantic partner] at the relevant time period, [the] name was [the client s first name] and [ ] was Laotian. [Witness 13] frankly admitted that he had a very poor memory of the events in question. The panel found [Witness 13] s testimony to be light hearted and somewhat sarcastic at times. He did not appear to appreciate the serious of the events in questions. Given he admitted that he was a binge drinker at the time and that he only had a vague recollection of the events in question, the panel was unable to place much credence on his testimony. Witness # 15 [ ] [Witness 15] is a homeowner who lives with her husband and family in the home in which she testified to the fact that she rented a room to the Member from Jan.-Apr /2001 approx. She went on to advise the panel that the Member was a shift worker at health care facility [ ]. [Witness 15] also advised the panel that the Member ate some meals with them and also spent some evenings watching TV. The Member was dating her [child s] best friend [ ], who came over to the house frequently, she went on to advise the panel that she did not know [the client] or anyone else in the [client s] family. Under cross examination [Witness 15] advised the panel that she did not keep track of his work schedule, and that he was a boarder, not her son. She also advised the panel that she was not sure where he was when he was out. The panel submits that the testimony provided by [Witness 15] to be brief, straightforward, to the point and concise, yet did not support the Member s testimony that he regularly stayed at home with [Witness 15 and her husband] watching TV. Witness # 16 [ ] [Witness 16] is a registered nurse who worked on the [ ] Unit at [the] Hospital. She testified that shortly after [the client] s discharge, she received a call from [the client], asking to speak with the Member. After ascertaining that the call was a personal call, she advised [the client] that is was inappropriate to call the Member. The Member was not on the unit at the time, but when she saw him she advised him not to take calls on a personal level. She described the Member as someone who had just graduated, was young, and needed some direction. She did not however have any problem with him. Under cross examination, the witness advised the panel that a patient will call occasionally to let staff know that they are doing ok. The call to the Member was unusual and that she was concerned re the possible personal connection. The witness explained to the Member that there were nurse/patient boundaries and that you cannot mix the two. The witness stated that the Member thanked him for advising him, and that that was the last she had heard about it.

14 The panel found that the witness was straightforward and credible, and does not have a personal interest in the outcome of this hearing. Witness # 17 Shane Duval Examination in Chief by Counsel for the Member Shane Duval, the Member, is 29 years old. He completed a three year nursing program at [ ] in August, His education included training on the ethical responsibilities of nurses and the standards of the profession. During his three-year program, he completed a seven-week rotation in psychiatry at [ ]. In mid January 2001, the Member began work as a Registered Nurse on the [ ] Unit at [ ] Hospital. During his testimony the Member stated that he had received orientation to the unit, which included supervision by experienced nursing staff. Between January 30 th and February 14 th, 2001, the Member provided nursing care to [the client] while [the client] was a patient on the Liaison Unit. He worked as a nurse in the [ ] Unit on January 30 th, February 1 st, 2 nd, 3 rd, 6 th and 10 th (Exhibit #11, p. 300). The [ ] Unit was very small. The Member testified that he had other contacts with [the client] other then what was noted in [the client] s Health Record (Exhibit # 2). The Member carried out assessments of the patient on February 2 nd, 6 th, and 10 th (Exhibit # 2, pp. 317, 320, 321, 323, 328). He also testified that he attended a family meeting with the social worker and other counselling sessions with the patient. The Member testified that his first contact with [the client] post discharge from the Hospital was when [the client] called him on his cell phone and that [the client] obtained the number from an employee at the gym where they both worked out. He did not supply the name of the person who he claimed gave the phone number. The Member testified that he was invited to [the client] s surprise birthday party by [the client s] mom. He stayed for approximately minutes and then left to go to [ ] to visit his mother, and did not return. The witness denied taking [the client] shopping to facilitate the surprise birthday party. He showed up to the party by himself and stated that the party was already in progress when he arrived. He denied bringing [ ] any gifts but admitted to giving [ ] a card signed; Love ya, Shane, XOXO (Exhibit # 4). The Member s presence at the party is confirmed by the pictures taken (Exhibit # 7 A&B). The Member also testified that he was not introduced as [the client] s boyfriend, that they were not holding hands and did not kiss [the client]. The Member also testified that he had attended [the client] s father s birthday party. [The client] called him and asked him if he would drop by, he agreed but didn t stay long. Stayed for approximately minutes, had a beer a left the party. Photographs taken at during the party

15 show the Member engaged in horseplay with [the client] and with a member of [the client s] family (Exhibit # 3 A&B). The Member denied telling [the client] to keep their relationship a secret. The Member denied going to [ ], because it was a [ ] strip club, he did however advise the panel that at one point [the client] had called him, as he was about to go out with his roommate and a friend to a bar. The Member was unsure if [the client] was invited to come along, or if [the client] in fact invited [ ]self along. The Member went on to advise the panel that they may have picked [the client] up. After their arrival at the bar, [the client] left after approx 45 minutes, and the Member stated that he didn t know why [ ]. The Member stated that he and his friend stayed at the bar for another approx. 45 minutes. The Member was asked the following questions by his counsel: Were you ever observed holding hands or kissing on the couch?, to which the Member responded No Did you ever go to a movie with [the client]?, to which the Member responded No: Did you ever go hiking in [ ] with [the client]? The Member responded No Ever have sex with [the client]? The Member responded never Ever kiss or have sexual contact of any nature with [the client]? the Member responded No Were you seeing [the client] every day? Take [the client] bowling?, Mini-Golfing?, or shooting pool? the Member responded No. Ever buy [the client] a present? The Member stated No Have you ever had a [ ] infection? the Member stated yes, his current [romantic partner] gave it to him in April or May in The Member went on to state that he never had sex with anyone when he had that infection. He never saw a doctor about it, and stated that he used over the counter medication. In regards to exhibit 5a and 5b. The Member denies giving them to [the client]. The Member denied moving into the [the client s family s] home, or sleeping overnight there, either in [the client] s bed or on the couch. The member stated that he lived at [Witness 15 s] home during this period. The Member stated that at this time he was either working or spending time with his [romantic partner]. The Member stated that he took his meals at [Witness 15 s] home, and was not eating at [the client s family home]. When [Witness 15] s child] returned from school, he contacted a former roommate and made arrangements to rent a room at the same place. This was approx. the first week of May/2001. The Member testified that at some point after he moved in, [the client] appeared at his residence, unannounced at approx 1a.m. The member was unsure of the exact conversation, but stated that [the client] wanted to be his [romantic partner], and the Member [said] No, and instructed [the client] not to call him anymore. The Member stated that [the client] was pretty mad, used the F word a few times, and then left. The Member stressed that he was not drunk or naked when speaking to [the client]. The Member s roommate [ ] was there the entire time and was aware of the incident.

16 The Member denies that he made any further calls, or had any further contact. The Member was asked about meeting [the client] s neighbour [Witness 2]. The Member didn t believe that he had ever met her, nor had he ever kissed [the client] in her presence. The Member admitted to meeting [Witness 6] at [the client s] birthday but denied ever going to her house or holding hands and kissing [the client] in her presence. The Member went on to deny being on the couch, under the covers, as alleged by [the client] s [sibling]. Cross Examination by Counsel for the College Under the course of cross examination, by Ms. Zayid, the Member made the following admissions: Being a nurse is a privilege Trust is particularly important in Psychiatric Nursing They (the patients) talk to you about everything Boundaries are important and it is the responsibility of the nurse to maintain these boundaries The Nurse must know when to draw the line, and it is not professional for the nurse not to do that The first time that he met [the client] was at the Feb.6 family meeting, and wasn t surprised at being invited to the Birthday party. Ms. Zayid asked the Member at discharge you knew a fair amount about [the client] s mental health, suicide attempt, problems with self esteem and family dysfunction. He was also asked if he was aware of [the client] s [sibling] cutting [ ]self, mothers psych history, and [the client] s problems confronting people. The fact that he knew all this Feb 10, 2001, and the Member responded yes to all the questions. The Member was asked if he knew that [the client] was a risk of a suicide, and the Member responded Oh yeah, I was aware. The Member admitted to calling and dropping by [the client] s home. The Member confirmed that they had been out to a sports bar down the street from [ ] with [the client]. He was asked if he had any other social contacts with any patients after discharge, and he responded psychiatric patients no-. Further, the Member admitted that senior nurse, [Witness 16], advised him that it was inappropriate for him to receive calls from patients on the unit. Counsel for the College preceded in her line of questioning around the conversation the Member had with [Witness 16] as follows: Q. She told you it was inappropriate to have them (patients) contact you on the unit? A. That s correct.

17 Q. You heard [Witness 16] say she also made it clear to you that you should not be having any contact with patient; correct? A. Okay, correct. Q. And she s telling the truth when she says that, isn t she ([Witness 16])? A. Oh, yeah. Q. [Witness 16] certainly made it clear to you that you don t engage in a personal relationship with a patient, after they leave the hospital; correct? A. Okay, I ll agree with that. The Member stated that he understood the need to maintain proper boundaries. Despite this the Member admitted to speaking several more times with [the client], that they called each other, and [the client] gave him the option to check in on [the client]. The Member admitted that he in fact had stored [the client] s telephone number on his cell phone. The Member did not report this back to the unit or to [Witness 16], because he didn t feel that is was a big deal. The Member stated that he felt that you could be a friend and be a nurse at the same time. The Member advised the panel that The compassion in me doesn t end in nursing. As well, the Member further testified that: he never read the College s documentation on Ethical Standards. he denies that he ever had supper or meals at the [client s] home, denies any kind of an intimate, personal relationship with [the client]. the night that [the client] arrived at his home uninvited, [the client] was aware that he had a [romantic partner], he also stated that he was [the client s] friend and that he wasn t doing anything wrong. [the client] walked away swearing at him. He was of the opinion that if you reject someone, you are going to be upset. When council questioned the member about whether [the client] was upset with you for breaking up the relationship, the member stated Well yeah, of course. and I mean, [the client] is still alive, you know, so obviously [the client] coped well. given [the client] s history, there was a potential situation, but he didn t contact anyone. The Member testified that he was the one who ended the friendship. The panel was of the opinion that this demonstrated a lack of professional concern for [the client s] emotional well being and mental health, even though he testified that he recognized that [the client] was upset. Counsel for the College asked the Member So sitting here today, you now realize that that was the wrong thing to do? The Member answered Well, yeah, I would say it is, professionally, the way this has come about, then yeah. Counsel further asked And that that s something that

18 most members of this profession would consider disgraceful or unprofessional? The Member answered Yeah. Re-Examination by Members Council: The Member stated that on orientation no one reviewed the Standards of the College with him, specifically, the standard that prohibits socialization with former patients. The Member said that he was not aware of any such standard when he was socializing with [the client]. Counsel asked the following question: From the period of mid February to Mid May, whatever the timeframe was that all of this was supposed to have been taking place, if you wanted sex with [the client], were there places other than [the client] s house where you could have engaged in that type of conduct? The Member quickly responded with Sure. Counsel asked the Member Now, at the very end of the cross-examination you were asked whether or not you thought it was disgraceful, dishonourable or unprofessional or professional misconduct, and I want to make it so that the Panel has it clear. Are you saying that, in your opinion, being a friend to [the client] was professional misconduct? The Member s said I would say no. Evidence given by the Member in examination by his own counsel, and in cross examination by College Counsel was conflicting and inconsistent which leads the panel to find the Member to be less than credible, honest or forthcoming. Several times throughout this hearing the Member did not appear to appreciate the seriousness of the allegations and did on more then one occasion have inappropriate non-verbal communication with the Panel and others, i.e. Thumbs Up gesture to the Panel Chair when the Member felt that evidence was presented in his favour, smirking at [the client] during [the client s] cross examination by his counsel, and chuckling at anecdotes by former roommate [ ]. The Member displayed no sensitivity for the emotional pain and trauma that the attendance at this tribunal caused [the client] during [the client s] testimony. The panel could not accept that the Member was the only credible witness present during this hearing, especially given his interest in the outcome of the case. The Member during crossexamination acknowledged that it was wrong to have social contact with a former patient however he contradicted himself in re-examination by his own Counsel. The panel acknowledges that Counsel for the College s submission that the evidence given by the Member was given after he had an opportunity to hear and consider the evidence given by all the other witnesses therefore should be given less weight. College Counsel s Submissions

19 College counsel submitted that the College has alleged that the Member has failed to maintain the professional standards and that the Member admits to carrying on a personal relationship with [the client] within weeks of [the client s] discharge from the psychiatric unit where he had been [the client s] nurse. The College submitted that [the client] and the Member were dating. Counsel for the College advised the panel that they do not have to accept any witness s evidence in total. The scenario was put forward that if the panel were to accept the Member s evidence, then the panel would not be able to accept any evidence provided by the witnesses for the College. The Member s evidence with regards to his orientation schedule conflicted with the evidence given by [Witness 9], the manager of the [ ] Unit at [ ] Hospital, during the relevant time. Counsel for the College did not dispute that [the client] was the one who had first made the telephone call to the Member on the unit and that [the client] had also called him on his cell phone. The College found the Member not to be credible as to how [the client] got his cell phone number because he was not specific in his testimony. Since the Member did not deny having a relationship with [the client], Counsel for the College alleges that this represents professional misconduct. In fact there was a great deal of familiarity between these two people over a short period of time. March 28, 2001, six weeks after [the client] s discharge the Member was attending a birthday party in the family home. As for the allegations that Member s Counsel inferred that [the client] was an angry [person], [the client] moved on with [ ] life and started dating [Witness 7] after the break up of the relationship with the Member. The Member knew the client s condition and knew that [the client] may have to be readmitted in future. Counsel for the College, recognizes that the Member pursued a personal relationship. The testimony given by [Dr. B] supports that the Member crossed the line because he had a social relationship with the client post discharge which is against the College Standard for the Therapeutic Nurse-Client Relationship (Exhibit #24). Based on the definition of sexual abuse under the standard (Exhibit #24 p. 15), Counsel for the College alleged that even if there is no sexual abuse his behaviour still falls below the standard. In reviewing the decision guide under the appropriateness of nurse s behaviours under the standard, if the first behaviour was considered, the Member should have stopped the behaviour. Counsel for the College asked the panel to rely on the expert s evidence and if the panel finds that the Member s behaviour falls below the professional standards, that the Member would be regarded by members as disgraceful, dishonourable and unprofessional. Counsel for the College also referred to [Witness 16 s] evidence of how members would consider his behaviour as disgraceful, dishonourable and unprofessional. Defense Counsel Submissions