DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO. PANEL: MICHAEL HOGARD, RPN Chairperson DAWN CUTLER, RN

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1 DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO PANEL: MICHAEL HOGARD, RPN Chairperson DAWN CUTLER, RN Member GRACE FOX, NP Member CATHERINE WARD Public Member DEVINDER WALIA Public Member BETWEEN: ) COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for ) College of Nurses of Ontario ) - and - ) ) NO ONE PRESENT for ) Terry E. Wright TERRY E. WRIGHT ) Registration No ) ) ) LUISA RITACCA ) Independent Legal Counsel ) ) ) Heard: February 13-14, 2017 AMENDED DECISION AND REASONS This matter came on for hearing before a panel of the Discipline Committee (the Panel ) on February 13, 2017 at the College of Nurses of Ontario ( the College ) at Toronto. Counsel for the College provided the Panel with evidence that Terry Wright (the Member ) had chosen to be self-represented and had contacted Counsel for the College by in the early hours of the day of the hearing. In his , the Member stated that he would not be able to attend the hearing. He did not request an adjournment to a future date. Attempts to contact the Member further to ascertain if he wished for an adjournment to a later date were not successful. An Affidavit of [ ], Prosecutions Clerk, dated November 9, 2016 was presented to the Panel demonstrating that the Member had been served with the Notice of Hearing. The Panel deliberated and found it appropriate to proceed with the hearing in the Member s absence.

2 Publication Ban Counsel for the College presented two motions for a ban on the publication or broadcasting of certain information. Both motions were granted by the Panel. Accordingly, there is an order: 1. banning the publication or broadcasting of the name of the client identified in this hearing, as well as any information that would identify the client in this hearing; and 2. banning the publication or broadcasting of the name of the victim who was sexually exploited by the Member, as admitted by the Member in a previous discipline hearing, which formed part of the evidence on the penalty hearing. The Allegations The allegations against the Member as stated in the Notice of Hearing dated November 7, 2016, are as follows. IT IS ALLEGED THAT: 1. You have committed an act of professional misconduct as provided by subsection 51(1)(b.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, while working as a Registered Nurse in the office of [Doctor B ] in [ ], Ontario, you sexually abused a client, as follows: a. on or about March 2, 2016, you engaged in touching of a sexual nature of [The Client]; and/or b. on or about March 2, 2016, you engaged in behaviour of a sexual nature toward [The Client] and/or 2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, while working as a Registered Nurse in the office of [Doctor B ] in [ ], Ontario, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that: a. on or about March 2, 2016, you failed to maintain the boundaries of the therapeutic nurse-client relationship in respect of client [The Client] by touching her in a sexual manner, b. on or about March 2, 2016, you engaged in touching of a sexual nature of [The Client]; and/or c. on or about March 2, 2016, you engaged in behaviour of a sexual nature towards [The Client]; and/or

3 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, while working as a Registered Nurse in the office of [Doctor B] 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 of the profession as disgraceful, dishonourable or unprofessional in that you: a. on or about March 2, 2016, you failed to maintain the boundaries of the therapeutic nurse-client relationship in respect of [The Client] by touching her in a sexual manner, b. on or about March 2, 2016, you engaged in touching of a sexual nature of [The Client]; and/or c. on or about March 2, 2016, you engaged in behaviour of a sexual nature towards[the Client] Member s Plea Given that the Member was not present nor represented, he was deemed to have denied the allegations in the Notice of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member. Overview The Member s certificate of registration was suspended August 31, 2016 for professional misconduct related to allegations of sexual abuse of a 16-year old client, [The Client] At the time, the Member was working about two shifts per week as a Registered Nurse in a dentistry clinic (the Clinic ), which provided dental surgery with anaesthetic support. He was witnessed touching the chest and breast area of [The Client] while she was unconscious in the post anaesthetic recovery room of the clinic immediately following a wisdom tooth extraction. The Panel heard evidence from three witnesses and received eight exhibits to consider. The Panel found that the evidence presented supported the allegations of sexual abuse and breach of the standards of practice in that he engaged in touching of a sexual nature with a client. The Panel found the Member engaged in conduct that would be regarded by members of the profession to be disgraceful, dishonourable and unprofessional. The Evidence College Counsel presented three witnesses who were working at the Clinic at the time of the event. On March 2, 2016 a 16 year old female client ([The Client]) was given general anaesthetic and four wisdom teeth were extracted. Following the surgery [The Client] was transferred to the post anaesthetic room and care was transferred to [Witness1], a Registered Nurse. [Witness 1] was not scheduled to work in that room but the Member was late due to a snow storm. At 0935

4 care was transferred to the Member. Within a few minutes, [Doctor A], an anaesthetist, returned to the room and observed the Member standing beside [The Client] s stretcher with his body near to her head, with his left hand and upper forearm under [The Client] s shirt touching her left breast. [The Client] was not conscious due to the sedation. The Member immediately jerked his arm out from under [The Client] s shirt and palpated her neck. [Doctor A] testified that he was shocked and asked the Member what he was doing. The Member stated he was checking [The Client] s carotid pulse. [Doctor A] testified that there was no reason to touch [The Client] s chest or take a carotid pulse. [Doctor A] reported the incident to [Doctor B] (the oral surgeon). [Doctor B] approached the Member who denied the allegation. The Member s employment was terminated. More details about the relevant evidence are as follows. [Doctor B] [Doctor B] has been a dentist since 1980 and has a specialty in oral maxillofacial surgery. The Clinic is located in [ ]. [Doctor B] is certified to use local to deep anaesthesia. He is assisted in administering general anaesthesia though an arrangement with South Lake Hospital two days per week on a rotating basis. The age of his clients are from neonates to death. General anaesthesia is provided for clients aged 3 years to about 80 years old. [Doctor B] reviewed the floor plan and the flow of clients through the Clinic. The floor plan of the Clinic was presented as evidence and reviewed by [Doctor B]. Surgery is conducted and then the unconscious client is moved to the recovery room staffed by an RN. The client remains in the recovery room for about 20 to 30 minutes. The purpose of the recovery room is for the client to emerge from an unconscious to conscious state. The RN is not to leave the recovery room while a client is being recovered. There are three RNs on shift. One is assigned to recovery and another to the discharge area and the third is a float to cover if needed. The swinging doors between the operating room and the recovery room are usually left open when the operating room is empty. During surgery the client is monitored with an electrocardiogram wrist bracelet with leads to the left arm and right wrist. A pulse oximeter is placed on the patient s finger and the blood pressure is monitored by a cuff on the right upper arm every 5 minutes. There is an anaesthetic machine which monitors end tidal C02, gas levels and patient temperature. There is rarely ever monitoring from leads on the client s chest. Monitoring in the recovery room is done through visual assessment, and monitoring of the client s oxygen and blood pressure. There is usually no need for electrocardiogram monitoring in the recovery room. [Doctor B] stated that initially the Member was sent to the Clinic through a nursing agency hired for staffing but as the need for staffing increased the Member was hired directly on a casual basis and only worked in the recovery area. There was no written employment contract. During orientation new staff are watched closely by [Witness 1], RN. There is a gradual observe and work process to orientation. The nursing agency that sent the Member to the Clinic sends staff with experience in anaesthesia recovery. [Doctor B] found the Member had good clinical skills.

5 [Doctor B] identified the health record of [The Client] and reviewed it for the Panel. The surgery took place on March 2, It was initiated at about 0905 and ended at 0930 when the laryngeal tube was removed. [The Client] was then taken to the recovery room by both [Doctor B] and [Doctor A] and a report was given to [Witness 1], who was the RN in the recovery room. The employee work schedule for March 2, 2016 was presented as evidence. [Doctor B] did not recall any issues regarding the Member s arrival time that morning, only that there appeared to be a bit of bustle when the Member arrived. [Doctor B] states he spent about three minutes in the recovery room and then left to check on another client in the office. [The Client] was still unconscious when [Doctor B] left but moving to awaken. The laryngeal mask airway was in place. Later that day, [Doctor A] invited [Doctor B] to his office and told [Doctor B] that [Doctor A] had observed the Member s hand down the shirt of the patient [The Client]. [Doctor B] called the Member into his office and told him what was reported. The Member denied the allegation, stating he had been checking the client s pulse. [Doctor B] found that the Member did not give a good explanation for his behaviour. [Doctor A] did not want the Member to finish his shift. [Doctor B] recalled the Member to his office and in the presence of the office manager asked him to leave. [Doctor B] then called his lawyer on how to proceed and made notes on the events of the day. [Doctor B] and [Doctor A] met with [The Client] and her mother, excusing the RN from the room. [Doctor A] explained what he had observed. [The Client] cried and her mother consoled her. The mother was grateful that the issue had been handled. It was agreed that [Doctor A] would be reporting the event to the College as he was the witness. The family did not wish to pursue criminal charges. [Doctor B] contacted [ ] [The Client] s dentist, to notify him of the event and the resolution. [Doctor B] stated that there was no reason for the Member to check [The Client]'s carotid pulse or to conduct any palpation of [The Client] s chest area. [Doctor A] [Doctor A] is a specialist in anaesthesia with privileges at South Lake Hospital. He rotates in clinics in the surrounding area. He works at the Clinic about 5 to 10 times per year. His role at the Clinic is to provide general anaesthesia for clients having dental procedures. When at the Clinic, [Doctor A] s day starts at 0700 as he readies for the day and checks the equipment, reviews client records and speaks with and assesses clients prior to the procedures. In the operating room his role is to start the intravenous line and induce and maintain anaesthesia during the procedure and then escort the client to the recovery room. Monitoring during the procedure is done with the blood pressure cuff and a wrist ECG with leads attached to the right wrist and left ankle. The laryngeal tube hooks up to the anaesthetic machine and monitors the tidal volume. Respiratory rate and oxygen levels are also monitored. Post-surgical monitoring

6 relates to the oxygen saturation and ECG monitoring is not required in the recovery room. The client is moved to the recovery room once the operation is completed and [Doctor A] escorts the client with [Doctor B]. [Doctor A] reports on the client to the RN in the recovery room. The report consists of past medical history, medications, allergies, what was given and done in the operating room, and any issues during the procedure. Once the client wakes up the laryngeal mask airway is removed by the recovery nurse and /or the physician. Six to twelve procedures are done daily. [Doctor A] worked with the Member five or six times over the course of one year. His clinical skills were not an issue until the day in question. He was unaware of any limitations and/or restrictions on the Member s nursing practice. He stated that he had no knowledge of the Member s personal life and no knowledge of any issues with the police. The health record of [The Client] (Exhibit #5) was reviewed with [Doctor A]. Most of the documentation had been done by him until The surgery was uneventful and the client was transferred to recovery room at 0935 unconscious. [Doctor A] and [Doctor B] transferred [The Client] [Doctor A ] referred to Exhibit #4, the floor plan of the Clinic to explain events. [Witness 1] was the RN in the recovery room when [The Client] was transferred there. [Doctor A] stayed in the recovery room for a few minutes. [The Client] was still unconscious and the laryngeal mask airway was in place. [Doctor B] and then the Member entered the room. Vital signs were done and [The Client] was connected to the monitoring equipment. The Member had a discussion with [Witness #1]. The Member was late to work due to the weather. He stated that he was not going to take a break. [Witness 1] was giving the report to the Member when [Doctor A] went back to the operating room to clean up and get ready for the next case. [Doctor A] stated he was only in the operating room for 1 to 2 minutes and walked back to the recovery room to check on [The Client]. The swinging doors were open. He noticed the Member had his left hand down the shirt of [The Client] over her left breast. The Member was standing on the left side of [The Client] near her head, looking towards the wall, and his body was turned towards her feet. [Doctor A] could see the left side of the Member s face and the Member s shoulder. The Member was about 5 to 8 feet away from where [Doctor A] was standing. [Doctor A] denied any visual deficits at the time. [The Client] was still unconscious with the laryngeal mask airway in place. There was no one else in the room. [Doctor A] stated that he was stunned for a minute as the Member moved his hand to [The Client] s neck. [Doctor A] then went to stand beside the Member and asked what he was doing. The Member stated that he was taking [The Client] s carotid pulse. The explanation did not agree with what [Doctor A] saw and there was no reason for the Member s hand to be down [The Client] s shirt. The pulse oximeter was still on [The Client] s finger and monitoring her pulse and oxygen level. The Member stated to [Doctor A], I need my job too much to do something like that. [Doctor A] stayed with both the Member and [The Client] until she woke up and then [Doctor A] went to talk to [Doctor B] about the event. [Doctor B] was shocked and went to get another recovery room nurse to watch [The Client] while he talked to the Member. [Doctor B] then talked to [Doctor A] in the office. They both spoke with [The Client] and her mother. [The Client] was upset and crying. The mother was upset but then focused on reassuring and calming her daughter. [Doctor A] gave the mother his contact information.

7 [Doctor A] knew he would have to make a report to the College. He wrote a note for the chart. He also wrote a note for the College and faxed it that day (Exhibit #7). [Witness 1 [Witness 1] has been a Registered Nurse since 1986 with experience in: emergency, day surgery, ambulatory care, endoscopy and dentist office nursing. She has been employed at the Clinic for about three and a half years. She completed the post-anaesthetic care unit course in 2013 and is certified in advanced cardiac life support. The Clinic staffs three nurses: a float for relief, a post-anaesthetic care unit nurse and a discharge nurse. The duties of the nurse in the recovery room are to maintain the airway, monitor the clients vital signs and observe for bleeding. Clients are transferred from the operating room to the recovery room by the dental surgeon and the anaesthetist. Monitoring equipment consists of an oximeter, airways and a blood pressure cuff. Patients are unconscious when transferred and start to respond within 5 to 10 minutes. The laryngeal mask airway is removed by either the RN or anaesthetist when the client arouses and responds. The client stays in the recovery room for about 30 minutes. If there is an issue with the equipment a heart rate is usually palpated radially. [Witness 1] knew the Member and stated that his clinical skills were not out of the ordinary. She denied any knowledge of restrictions and/or limitations to his practice or of his involvement with the police or criminal system. [Witness 1] was working the day in question as a float nurse and the Member was scheduled to work in the recovery room. The Member was late as it had snowed and he had to shovel. The health record of [The Client] (Exhibit#5) was reviewed by [Witness 1] and she noted that her handwriting was only on page 2 of the record. There were no concerns with [The Client] s vital signs. She handed over [The Client] to the Member within 5 minutes of [The Client] s arrival in the recovery room. [The Client] was still unconscious when [Witness 1] left the room to resume her float duties. The Member was alone in the room with [The Client] when she left. [Witness 1] recalls being called back to the recovery room by [Doctor B]. [The Client] was conscious. The 0945 notation in [The Client] s chart was made by the Member and the 1005 notation was signed by [Witness 1]. [Witness 1] stated that there would be no reason to touch the client s chest area with one s hand. Final Submissions College Counsel in her final submissions asked the Panel to make findings of professional misconduct in regards to the evidence presented. She asked the Panel to find that there was sexual abuse by touching of a sexual nature, a breach of the standards of practice and failure to maintain professional boundaries, and that the conduct would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional.

8 The College acknowledged that it bears the onus to prove on a balance of probabilities that the conduct as alleged in the Notice of Hearing occurred and that the conduct amounts to professional misconduct, based on the evidence. The Member did not participate in the hearing and was deemed to have denied the allegations. He was not present to test or examine the evidence presented. Therefore there is no competing evidence. The Panel is tasked to assess the credibility and reliability of the witnesses. The evidence must be assessed as clear, cogent and convincing. [Doctor A] was a key witness as he directly observed the conduct. His perception and ability to draw conclusions were not impeded in any way. He wrote and submitted the letter to the College that day. His evidence was consistent. [Doctor B] and [Witness 1] were only witnesses to the background evidence. There was no need for an expert witness as the issue is factual and legal. Counsel advised that [The Client] was not interested in participating in this proceeding and would not have added to the narrative of the events as she was unconscious at the time. As to the allegations, Counsel submitted: 1. One of the definitions of sexual abuse in the Code is that sexual abuse includes touching of a sexual nature. 2. Touching of a sexual nature is also a breach of the published Standard of Practice Therapeutic Nurse-Client Relationship (Revised 2006) (the Standard ). Touching of a sexual nature represents a failure to maintain boundaries. Indicator 4(i) of the Standard is met by a nurse not exhibiting physical, verbal and non-verbal behaviours toward a client that demonstrate disrespect for the client and/or are perceived by the client and/or others as abusive. The Standard defines what constitutes a boundary violation. Women s breasts are sexual organs and therefore touching of the breast in this case was sexual. Falling into behaviour that is unprofessional, it personally gratifies the needs of the nurse and not the client and is inappropriate. It is clear that touching a patient in a sexual manner with no clear clinical purpose is a serious breach. 3. Characterizing conduct as disgraceful, dishonourable and unprofessional is very serious. This finding is appropriate where there has been demonstrates a serious breach of trust and a disregard of others. The Panel should make this finding if it concludes that it has serious doubt about the moral fitness of the Member and his inherent ability to discharge the higher obligations the public expects professionals to meet Decision The Panel having considered the evidence and the onus and standard of proof finds that the Member committed acts of professional misconduct as alleged in paragraphs 1, 2, and 3 of the Notice of Hearing. In particular the Panel finds that the Member:

9 1. sexually abused a client by touching [The Client] s breast with no clinical purpose; 2. contravened the Therapeutic Nurse-Client Relationship Standard (2006) by failing to maintain boundaries, and by engaging in touching and behaviour of a sexual nature in touching an unconscious client s breast with no clinical purpose; and 3. engaged in conduct that would, having regard to all the circumstances, reasonable be regarded by members of the profession as disgraceful, dishonourable and unprofessional. Reasons for Decision Despite being properly served with the Notice of Hearing, the Member was not present and did not request an adjournment to a later date. There was therefore no competing evidence or crossexamination of the witnesses. The Panel therefore reviewed the evidence presented by College Counsel and deliberated. The Panel heard evidence from three witnesses. The key witness was [Doctor A] who witnessed the conduct. [Doctor B] and [Witness 1] provided background evidence. Using the criteria set out in Pitts v Ontario (Ministry of Community and Social Services, Director of Family Benefits Branch) (1985), 51 O.R. (2d) 302 the Panel found the evidence of the witnesses to be forthright, credible, reliable and consistent with the documentary evidence. [Doctor A] s evidence was consistent with the evidence given and not contradicting. He has no interest in this proceeding and therefore impartial. His only interest was in protection of the client and the public. He was shocked by what he saw and immediately reported the conduct. [The Client] was unconscious during the incident and unaware until she was told by [Doctor B] and [Doctor A]. As to the allegations set out in the Notice of Hearing, the reasons of the Panel are as follows. 1. Touching of a sexual nature constitutes sexual abuse as defined by the Code. [The Client] s breast was touched for no clear clinical purpose. Her blood pressure was monitored and the oximeter monitored her heart rate and oxygen level. [The Client] was stable when [Witness 1] left the room and [Doctor A] returned. 2. Touching an unconscious client s breast when there is no clinical reason to do so is a clear contravention of the Therapeutic Nurse-Client Relationship Standard (2006). The breach occurs by failing to maintain boundaries, and engaging in touching and behaviour of a sexual nature. 3. Having regard to all the circumstances and the evidence presented, touching a client s breast with no clinical purpose would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional. Of note, [The Client] was

10 Penalty unconscious and very vulnerable. The Member also lied to [Doctor B] regarding the incident and had no reasonable explanation for his conduct. Penalty Evidence College Counsel presented additional evidence on the issue of penalty, being an Affidavit of [ ], Monitoring Administrator on the Monitoring Team at the College (Exhibit #9). The affidavit reviews the previous discipline record and criminal conviction of the Member. This evidence shows that the Member was disciplined by a panel of the Discipline Committee in 2007 for having been convicted of a crime relevant to his suitability to practice, in that he had been found guilty of sexually exploiting a minor between 2002 and The penalty imposed in that hearing was a joint submission that included a suspension and very restrictive terms, conditions and limitations. Penalty Submissions College Counsel submitted that the only appropriate penalty is revocation of the Member s certificate of registration, and a reprimand to provide comments and specific deterrence to the Member. The Member has not participated in the hearing therefore no mitigating factors were presented. The aggravating factors include the seriousness of the offence, the nature of the conduct at issue, and the fact that the client was a minor and unconscious, and therefore extremely vulnerable. Consent is not relevant as the client was not conscious. Another aggravating factor is the Member s previous history. There is an increased need for public protection as the conduct underlying the Member s previous discipline finding was relevant to this case. Counsel submitted that there needs to be a clear message sent to the membership and the public that this conduct will not be tolerated. A reprimand is a mandatory penalty in all findings of sexual abuse. Revocation is not mandatory, as there was no sexual intercourse or other sexual behaviour falling into the category requiring revocation. Nevertheless, counsel submitted that the violation of the client was very serious. Revocation must be ordered to maintain public protection and confidence. College Counsel presented a previous case from this Discipline Committee, CNO v Wagner (Discipline Committee, 2009) in which the conduct was similar as it was touching of a sexual nature that was not intercourse. In Wagner the member fondled an unconscious client. The member admitted his misconduct and agreed to revocation in a Joint Submission on Order. The revocation was ordered as it ensured that member would not have the opportunity to engage in this conduct in the future. Penalty Decision The Panel makes the following order as to penalty:

11 1. The Member is hereby ordered to appear before a panel of the Discipline Committee within three months of the date of this order to be reprimanded; and 2. The Panel directs the Executive Director to immediately revoke the Member s Certificate of Registration. Reasons for Penalty Decision The Panel concluded that the penalty proposed by the College is reasonable and in the public interest. Sexual touching of an unconscious minor is a violation of her person. The client was extremely vulnerable. In light of his previous discipline record, this was not an appropriate case to consider rehabilitation of this Member. A second sexual offence is intolerable. The Member s absence at this hearing leads to further support the concept that he is ungovernable. A reprimand is ordered to provide comments to the Member that his conduct is unacceptable. Revocation sends a clear message to the public and the membership that such conduct is disgraceful, dishonourable and unprofessional and will not be tolerated. It also protects the public as there will be no opportunity for the Member to use his status as nurse to repeat this conduct in the future. 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. Chairperson Date