DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

Transcription

1 DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO PANEL: Grace Isgro-Topping, Public Member Karen Breen-Reid, RN Member Rosalie Woods, RPN Member Sandra Trubyk, RN Member John Bald Public Member BETWEEN: MEGAN SHORTREED for COLLEGE OF NURSES OF ONTARIO College of Nurses of Ontario - and - ROBERT STEPHENSON for M. DENISE DIANE LEAHEY M. Denise Diane Leahey Registration No Heard: November 19, 2007 DECISION AND REASONS This matter came on for hearing before a panel of the Discipline Committee on November 19, 2007 at the College of Nurses of Ontario (the College at Toronto. The Allegations At the outset of the hearing, College counsel informed the panel that the College was withdrawing the Notice of Hearing dated August 2, 2007 [ ]. This arose from a decision of the Executive Committee dated August 30, 2007 [ ]. College counsel informed the panel that during the period in question, 1990 to 2001, two different Acts were enforced: the Health Discipline Act (HDA prior to 1994, and the Regulatory Health Profession Act (RHPA effective January 1, The original Notice of Hearing [ ], did not properly reference the Health Discipline Act and was corrected by a decision of the Executive Committee [ ]. The Member s Counsel supported the withdrawal of Exhibit #1. The panel agreed to withdraw the allegations in Exhibit #1 and proceeded with the allegations set out in the Notice of Hearing dated September 28, 2007 [ ].

2 The allegations against M. Denise Diane Leahey (the Member as stated in the Notice of Hearing dated September 28, 2007, are as follows: 1. 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, and/or as provided by subsection 85(3(c of the Health Disciplines Act, R.S.O. 1990, Ch. H.4, and defined in subsection 21(b of Ontario Regulation 549, R.R.O. 1990, in that while working as a Registered Nurse for [ ] in [ ], Ontario, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession as follows: a. between 1988 and 2001, you failed to maintain the boundaries of the nurse-client relationship in respect of [the client]; and/or 2. 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 working as a Registered Nurse for [ ], in [ ], Ontario, you sexually abused a client, as follows: a. on one or more occasions between January 1, 1994 and 2001, you engaged in sexual intercourse or other forms of physical sexual relations or touching of a sexual nature with [the client]; and/or 3. You have committed an act of professional misconduct as provided by subsection 51(1(c of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37 of Ontario Regulation 799/93, and/or as provided by subsection 85(3(c of the Health Disciplines Act, R.S.O. 1990, Ch. H.4, and defined in subsection 21(n of Ontario Regulation 549, R.R.O. 1990, in that while employed as a Registered Nurse for [ ], in [ ], Ontario, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, as follows: a. between 1988 and 2001, you failed to maintain the boundaries of the nurse-client relationship in respect of [the client]; and/or b. on one or more occasions between 1988 and 2001, you engaged in sexual intercourse or other forms of physical sexual relations touching, of a sexual nature with [the client]. During the hearing College Counsel requested a technical amendment to the Notice of Hearing: Allegation #1: Replace R.S.O. 1980, c. 196 with R.S.O. 1990, H.4 Allegation #3: Replace R.S.O. 1980, c. 196 with R.S.O. 1990, H.4 Counsel for the Member agreed to the amendments. The panel noted the changes and ordered that the amendments be reflected in the Notice of Hearing.

3 Member s Plea M. Denise Diane Leahey admitted the allegations as set out in the Amended Notice of Hearing. The panel conducted an oral plea inquiry and also obtained a written plea inquiry [ ]. 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. The Member, Ms. M. Denise Diane Leahey (formerly Denise Diane Mann (the Member, is a registered nurse. She successfully completed the Registered Nurse ( RN program and received her diploma from [ ] in The Member became a member of the College of Nurses of Ontario (the College in The Member has no prior history of discipline or other complaints at the College. THE CLIENT 4. On March [ ], 1986, at the age of [ ], [the client] was in a motor vehicle accident and was admitted to hospital. [The client] was diagnosed with a spinal cord injury that spared the 4 th and 5 th vertebrae of [the] cervical spine. [The client] is classified as an incomplete quadriplegic because [of] retain[ed] sensation, but no motor control, below [the] chest. [] 5. After [the] motor vehicle accident, [the client] remained in the hospital until November [], HOME CARE NURSING 6. On November [ ], 1987, [the client] was discharged from the hospital and returned home in [ ], Ontario. From time to time thereafter, [the client] was admitted to hospital for various illnesses and/or complications. 7. [The client] required nursing care in [the] home. 8. On November [ ], 1987, the Community Care Access Center (CCAC assigned [ ] to provide home care to [the client]. THE MEMBER S NURSING AND PERSONAL RELATIONSHIP WITH [THE CLIENT] FROM The Member met the Complainant in1990, when she was assigned as [the client s] nurse by [ ] and conducted a home visit. She continued to provide nursing care to [the client] on at least 27 official [ ] visits, the last of which was on October 29, 1993.

4 10. In the course of her employment and duties as a nurse, the Member developed a friendship with [the client] while providing ongoing nursing care. During her visits, she disclosed details to [the client] about her personal life. 11. In or about 1993, during [a] visit to provide nursing services, a sexual relationship began between [the client] and the Member. [The client] and the Member each allege that the other initiated the sexual relationship. However, it is agreed that [the client] and the Member engaged in consensual sexual contact that included nudity and genital to genital contact. The Member acknowledges that her actions were unprofessional. 12. The Member and [the client] continued having occasional consensual sexual contact during the Member s official nursing visits and lunch breaks, up to and after her last [ ] visit on October 29, In the summer of 1993, the Member s marriage was ending and she separated from her [spouse] in November If she were to testify, the Member would say that she was in a vulnerable state during this period, and that [the client] supported her in leaving her [spouse] and eventually obtaining a divorce. THE MEMBER S NURSING AND PERSONAL RELATIONSHIP WITH [THE CLIENT] FROM In 1994, [the client] began Law School and another nursing agency was engaged. 15. Meanwhile, the Member remained employed with [ ]. She continued to have a sexual and personal relationship with [the client]. She also developed a financial relationship with [the client]. 16. If the Member were to testify, she would say that throughout her relationship with [the client], she felt pressure to comply with suggestions [the client] made respecting money, including funds from the divorce settlement that [the client] helped her obtain. 17. In April 1995, the Member granted [the client] a Power of Attorney over her bank accounts. 18. From 1995 to 1996, inclusive, the Member was listed on [the client] s auto insurance policy as the primary driver of [the client s] car. 19. In March 1997, [the client], the Member and the Member s [child] went to Florida together. 20. In the fall of 1997, the Member moved into [the client] s house at [address 1] in [ ]. The house was also occupied by [the client s sibling]. They all had separate bedrooms. 21. In the fall of 1998, the Member moved with [the client] to [address 2]. They had separate bedrooms. The Member provided paid nursing care to [the client] from August [ ], 2000 to January [ ], 2001.

5 22. Prior to that, from 1997 to 2000, the Member provided unpaid nursing care to [the client] in exchange for rent, which included personal care and hygiene, bowel routine, suprapubic catheter care, chronic wound management, medication administration, acute nursing when general illness occurred and inventory of supplies and medications. As well, the Member provided nutrition, cooking, cleaning, household maintenance and assistance with daily living services to [the client]. 23. On March [ ], 1998, [the client] opened a joint bank account which included the Member and which remained open until Prior to March 1998, [address 2] was owned by [the client] s mother and it was rented out to students. On October [ ], 1998, the Deed of Land and Mortgage were changed to list the Member as a 50% owner of the house, with [the client] s mother. The Member contributed approximately $184,000 to renovate the house. 25. [The client] and the Member moved into the house together. They continued living together, and the Member continued to provide nursing services to [the client]. 26. On December [ ], 1998, the Member was added as a driver on [the client] s auto insurance policy. The Member remained on the insurance policy until April [ ], The Member interacted with [the client] s family and attended some family events between 1995 and In 2000, [ ] recommenced providing nursing services to [the client]. Subsequently, the Member was assigned as [the client] s nurse. 29. The Member provided nursing services to [the client] every day between August [ ], 2000 and January [ ], She was paid by [ ] to do so. 30. [ ] reported to CCAC that it was unable to meet [the client] s needs and would stop providing nursing services to [the client] after February [ ], On March [ ], 2001, the Member signed off on [the client] s discharge summary from [ ]. 32. In or around this time, the Member moved out of the home she shared with [the client] and ended the personal relationship between herself and [the client]. If the Member were to testify, she would say she felt the relationship was not a healthy one for herself and her children. 33. From or after 1997, the Member and [the client] engaged in occasional consensual sexual contact that included nudity and genital-to-genital contact during the period she was providing nursing care. 34. On April [ ], 2004, the Member commenced legal proceedings against [the client] for the return of the money she alleged [the client] had taken from her. In the civil action, the Member claims that she advanced approximately $220, to [the client] which has never been repaid. [The client] has defended that action and denies the allegations. The claim has not been resolved.

6 35. On July [ ], 2004, [the client] filed a complaint with the College of Nurses of Ontario which resulted in these allegations. 36. [The client] is a lawyer. The Member filed a complaint of professional misconduct against [the client] with the Law Society of Upper Canada. No discipline charges are pending against [the client] at the current time as they have been placed on hold pending the outcome of the Member s civil action. ADMISSIONS OF PROFESSIONAL MISCONDUCT 37. The Member admits that she committed an act of professional misconduct as provided in Allegation 1 of the Notice of Hearing. Specifically, she admits that she failed to maintain the boundaries of the nurse-client relationship with [the client] and thereby contravened the standards of practice of the profession or failed to meet the standards of practice of the profession under both the Health Disciplines Act (before January 1, 1994 and the RHPA (after January 1, The Member admits that she committed an act of professional misconduct as provided in Allegation 2 of the Notice of Hearing. Specifically, she admits that by engaging in physical sexual relations or touching of a sexual nature with [the client], including genital to genital contact, between January 1, 1994 and 2001, and that this constituted sexual abuse of a patient pursuant to subsection 51(1(b.1 of the Health Professions Procedural Code to the Nursing Act, 1991 and RHPA. 39. The Member admits that she committed an act of professional misconduct as provided in Allegation 3 of the Notice of Hearing. Specifically, she admits that by failing to maintain the boundaries of the nurse-client relationship with [the client] and by engaging in a personal, financial and sexual relationship with [the client] while [the client] was her patient, she 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, under both the Health Disciplines Act (before January 1, 1994 and the RHPA (after January 1, Decision The panel considered the Agreed Statement of Facts (ASF and finds that the facts support a finding of professional misconduct. In particular, the panel finds that the Member committed acts of professional misconduct as alleged in paragraphs #1, #2 and #3 of the Notice of Hearing in that: 1. between 1990 and 2001, the Member failed to maintain the boundaries of the nurseclient relationship; 2. the Member sexually abused a client between January 1, 1994 and 2001; and 3. the member engaged in conduct relevant to the practice of nursing, that would be regarded by members [as] disgraceful, dishonourable and unprofessional. Specifically, between 1990 and 2001;

7 a the Member failed to maintain the boundaries of the nurse-client relationship, and b the Member engaged in a sexual relationship with a client on one or more occasions. Reasons for Decision The panel deliberated and made findings on the facts for the period from only 1990 to The panel did not find that the Agreed Statement of Facts supported any findings for the period from 1988 to 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 (JSP provides as follows. M. DENISE DIANE LEAHEY ( THE MEMBER AND THE COLLEGE JOINTLY SUBMIT that, in view of the circumstances set out in the Agreed Statement of Facts, the Member s admissions of professional misconduct and the Panel s findings of professional misconduct, the Panel of the Discipline Committee ( the Panel should make an Order as follows: 1. Requiring the Member to appear before the Panel to be reprimanded at a date to be arranged but, in any event, within three (3 months of the date this Order becomes final; and 2. Directing the Executive Director to immediately revoke the Member s certificate of registration. Penalty Decision The panel accepts the Joint Submission as to Penalty and accordingly orders: 1. that the Member appear before the Panel to be reprimanded at a date to be arranged but, in any event, within three (3 months of the date this Order becomes final; and 2. that the Executive Director immediately revoke the Member s certificate of registration. Reasons for Penalty Decision The panel was bound by Section 51 (5 of the RHPA in that an oral reprimand and revocation are mandatory penalties when findings of sexual abuse are made. Since the Member admitted to the allegations of sexual abuse, no mitigating or extenuating circumstances would change the penalty decision. The panel concluded that the proposed penalty is reasonable and in the public interest.

8 I, Grace Isgro-Topping, Public Member, 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: Karen Breen-Reid, RN Rosalie Woods, RPN Sandra Trubyk, RN John Bald, Public Member