DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO. Michael Hogard, RPN Miranda Huang, RN

Transcription

1 DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO PANEL: Zahir Hirji, RN Michael Hogard, RPN Miranda Huang, RN Debra Mattina Chairperson Member Member Public Member BETWEEN: COLLEGE OF NURSES OF ONTARIO ) LINDA ROTHSTEIN & ) EMILY LAWRENCE for ) College of Nurses of Ontario ) - and - ) ) ELIZABETH MCINTYRE & ) DANIELLE BISNAR for [THE MEMBER] ) [THE MEMBER] ) ) ) JOHANNA BRADEN ) Independent Legal Counsel ) ) ) Heard: January 23-24, 2013, February 4-6, 2013, May 29-30, 2013, November 4-6, 2013, December 9-12, 2013, December 18-19, 2013, May 12-14, 2014 and May 21-23, 2014 AMENDED DECISION AND REASONS This matter came on for hearing before a panel of the Discipline Committee on 22 different hearing dates between January 23, 2013, and May 23, 2014 at the College of Nurses of Ontario ( the College ) at Toronto. Publication Ban

2 The panel made an order prohibiting the broadcasting or publishing of the identity of the client in this case or any information that would tend to identify her. The Allegations The allegations against [the Member] as stated in the Notice of Hearing dated July 24, 2012 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, in that on December 8, 2009, while working as a registered nurse at [the Facility], you sexually abused a client known as [the Client]. 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(7) of Ontario Regulation 799/93, in that on December 8, 2009, while working as a registered nurse at [the Facility], you abused a client known as [the Client] verbally, physically or emotionally. 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, in that on December 8, 2009, while working as a registered nurse at [the Facility], you engaged in conduct or performed acts, relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, and in particular with respect to your assessment, care and/or documentation of a client known as [the Client]. 4. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that on December 8, 2009, while working as a registered nurse at [the Facility], you contravened a standard of practice of the profession or failed to meet a standard of practice of the profession with respect to your assessment, care, and/or documentation of a client known as [the Client]. Member s Plea The Member denied all allegations in the Notice of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegations against the Member on the balance of probabilities using clear, cogent and convincing evidence. Overview

3 The Member is a Registered Nurse ( RN ) who obtained his Bachelor of Science in Nursing [ ] in 1993.The Member also worked [abroad], on a mixed medical/surgical floor [ ]. The Member then moved to Canada in 2005, and worked as a Personal Support Worker until he became registered with the College in August of To obtain his registration with the College, when the Member came to Canada he took a refresher program [ ] in the Spring 2005 and Winter 2006 semesters. From July 2006 to February 2007, the Member worked in the [ ] forensic unit at [the Facility]. In February 2007, the Member transferred within the Facility to the unit referred to as [the Unit], which was a post-operative gastrointestinal and gynecological unit at the Facility. The Member worked on the Unit from February 2007 to November From September 2010 to July 2011, the Member obtained a Perioperative Certificate [ ]. The primary allegations against the Member come from [the Client], who testified as to her experience at the Facility, on the Unit, during her hospital stay beginning on December 8, At the time of these events, [the Client] was [ ] years old, married and had [ ] young children. [ ] [The Client] was admitted to the Facility to undergo a total abdominal hysterectomy and possible bilateral oophorectomy. This surgery, which required general anaesthesia, commenced just after 0800 hours on December 8, The surgery was uneventful and concluded at about 1000 hours. After a stay in the post-anaesthesia recovery unit, [the Client] was transferred to the Unit at approximately 1445 hours. She was transferred [to the Unit, into a] shared room with two beds. [The Client] was in bed 1. The Member was working the night shift, filling in for a colleague. He began his shift on the Unit at 1900 hrs on December 8, 2009 and had [the Client] assigned to him as one of his six clients that shift. The College alleges that during that shift, the Member sexually abused [the Client] in that he: Directed [the Client] to raise her gown and expose her breasts for no clinical purpose; Exposed [the Client] s vaginal area during a bladder scan for no clinical purpose; and Touched [the Client] s genitals following the insertion of a catheter for no clinical purpose. If the panel finds that the Member did in fact commit sexual abuse in any one or more of the ways alleged by the College, it is not disputed that this conduct would also constitute physical and emotional abuse, a breach of the standards of practice of the profession, and conduct that would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. If the panel finds that the Member did not commit sexual abuse, then the College still asks for a finding that the Member breached the standards of practice of the profession and engaged in conduct that would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. The College says the basis for such a finding would be that the Member:

4 Failed utterly in communicating to [the Client] what he intended to do in respect of his care and the rationale for what he intended to do and obtain in order to obtain informed consent; Exposed [the Client] s vaginal area during a bladder scan in a manner that was not consistent with established practice; and/or Failed to document the results of the second bladder scan (if in fact the panel concludes that this scan was performed) and failed to report this second bladder scan to the oncoming nurses. Both [the Client] and the Member testified at length. In addition, the panel heard testimony from another nine witnesses, including four expert witnesses, and received 75 exhibits to review. [The Client] gave firm testimony that the acts of sexual abuse occurred. The Member gave equally firm testimony that they did not. The panel heard some evidence about how other institutions dealt with these allegations. [The Client] reported her allegations to the Facility s social worker on December 10, 2009 and the Facility began its investigation of [the Client] s complaint. [The Client] also reported this incident to the police in March of The police did not lay charges against the Member. The panel did not rely on how others resolved this issue. The Facility and the police have different processes and their investigations have different purposes. The panel considered the evidence led at the hearing and made its own determination based upon that evidence. After much deliberation and careful consideration of the evidence and submissions, the panel was unable to find that the College had met its burden to prove any of its allegations against the Member. The Evidence Assessment of credibility is a key part of the panel s function. Adjudicators should approach the assessment and credibility based on logic and experience and exercising their intuition and common sense. By their very nature, sexual assaults generally do not have witnesses, just the two parties involved. In this case, the Member and [the Client] are the only witnesses to the events that occurred on the night shift of December 8-9. Although their recollection of events does not conflict in many aspects, there are some crucial areas in which they have provided dramatically opposite versions of events. The panel approached the issue of credibility using the factors identified in Re Pitts and Director of Family Benefits Branch of the Ministry of Community and Social Services (1985) 51 O.R. (2d) 532 (H.C.J.). The panel considered: The appearance and demeanour of the witnesses, The witnesses opportunity to observe the matters about which they testified, The witnesses capacity to remember the events to which they testified, The probability or reasonability of the evidence,

5 The internal consistency or inconsistency of a witness evidence (whether the witness contradicted himself or herself), The external consistency of the evidence (whether the witness story is consistent with other evidence in the case), and Whether the witnesses had an interest in the outcome of the case or some other reason to be partial to one side or another. The panel s assessment of the credibility of the key witnesses is contained in the evaluation of the evidence and reasons for decision, below. The Evidence Resolving the central issue of what happened during the Member s shift on the night of December 8-9, 2009 required the panel to evaluate the evidence of [the Client] and the Member, as well as evidence from other witnesses, the documentary evidence and the video evidence. The panel had the benefit of transcripts for much of the evidence that was given orally. The panel reviewed all these transcripts carefully, as well as the panel s own notes from the hearing. It would be impossible to review all the evidence that was led, but the following summary contains the points the panel found to be the most significant. Evidence of [the Client] The College called [the Client] to testify to her experience on the Unit at the Facility during her post-surgical hospital stay. At the time of these events, [the Client] was [ ] years old, married [with] children. [ ] [The Client] was admitted to the Facility to undergo a total abdominal hysterectomy and possible bilateral oopherectomy. After her surgery, and after spending some time in the post-anaesthesia recovery room, [the Client] went to the Unit at approximately 1445 hours on December 8, She was transferred into [ ] a shared room having two beds. [The Client] was in bed 1. Another female [client] occupied bed 2. There was a washroom located in the room which had both a toilet and a shower. When she arrived on the Unit, [the Client] had an indwelling catheter in place. This was removed at 1645 by the day shift nurse. [The Client] was wearing a hospital gown and no undergarments. [The Client] had a PCA pump which administered pain medication at her control within prescribed limits, which she could activate by pushing a button. She also had an IV running fluids. [The Client] testified that when she arrived on the Unit after her surgery, she felt normal aside from pain. She felt her head was clear and she knew her surroundings. She stated she was not having any difficulty expressing herself nor any difficulty hearing. During cross-examination, [the Client] confirmed that in the recovery room before she went to the Unit, she was going in and out of consciousness. She acknowledged that she was experiencing the effects of the drugs that had been administered. [The Client] also acknowledged

6 that she was receiving drugs for pain through a "pain pump" (the PCA pump) and that she had been encouraged to use it by recovery room staff. She acknowledged that when the Member encouraged her to use her pain pump, it was consistent with the doctor's orders. She stated that when she arrived on the Unit, there was a sanitary napkin on the bed to which she was assigned. She had vaginal bleeding but said it was not heavy. The Member began his shift at 1900 hours and was assigned to [the Client]. [The Client] recalled that her first interaction with the Member would have been sometime after 1900, probably around In her evidence in chief, [the Client] testified that the Member came into her room and introduced himself, but she admitted she did not catch his name. She stated that the Member did what she assumed would be his normal rounds, checking her blood pressure, temperature, IV bag, IV lines, and asked her how she was feeling. In response to an unrelated question several moments later, [the Client] suddenly recalled further details of her first interaction with the Member. She stated that while doing his routine checking the Member "checked the maxi pad between my legs. You know, he pulled it down and looked between my legs." [The Client] stated that the Member did not tell her why he was doing this. She said she assumed what he was doing, stating, "he kind of readjusted it, I guess." It was during cross-examination that [the Client] testified that at her first interaction with the Member, she asked him a number of questions. [The Client] was somewhat distressed about her surgery and asked the Member to provide information on how extensive the surgery was. She wanted him to advise her of whether or not her ovaries had been removed along with her uterus. Unfortunately the Member was not able to provide her with the answers. He told her she would have to ask the doctor. [The Client] was also concerned with her inability to urinate and expressed fear about that. Later, [the Client] agreed that she was concerned about her [child] catching the bus to school. [The Client] acknowledged that although her [spouse] had been present at the [Facility] for the morning of her surgery, he had since left the country [ ] and would not return until after she was discharged from the hospital. (a) Lifting Her Gown to Expose Her Breasts [The Client] had received IV morphine via a PCA pump for pain control after surgery. She complained to the Member of itchiness all over her body which could have been a possible reaction to the morphine. In [the Client] s testimony, she stated that she reported to the Member that she was feeling itchy and asked him if she could have something more for the itch. [The Client] stated that the Member asked her and gestured with his hands for her to lift her gown. She stated that the Member did not tell her to lift her gown above her breasts but, "he gestured with his hands where to lift it to, I guess would be how to describe it". Upon further questioning about this gesture, [the Client] was asked what the Member s gesture indicated that she should do. She replied that the Member s gesture indicated she should lift her gown "above my breasts". [The Client] said that the Member said he needed to check for a rash so she then lifted her gown and exposed her breasts. [The Client] stated that the Member did not check any other parts of her body for a rash. [The Client] was sitting erect in the bed with the head of the bed elevated supporting her back. She stated "he did not check any other part of my body: my back,

7 my neck, my head, my legs, my arms. Then I just assumed he was going to give me the medication [for itchiness]". This allegation that the Member directed [the Client] to lift her gown and expose her breasts is one of the three bases on which the College seeks a finding that the Member abused [the Client] sexually, as well as verbally, physically or emotionally. The allegation did not come to light for some time. Although [the Client] reported before leaving the Facility that she had been sexually assaulted by the Member, she did not allege during any of her initial statements (to her nurse on the next day shift, to the Facility social worker, or to the Facility Nurse Manager) that the Member had asked her or directed her to lift her gown above her breasts. This allegation first came to light some three months later. The panel only became aware that this allegation emerged months after [the Client] s hospital stay during [the Client] s cross-examination. According to [the Client] s video-taped interview with the police (which she affirmed during this hearing), it was only in March of 2010, after she finally told her [spouse] on March 15, 2010 that she believed she had been sexually assaulted while in the [Facility], that [the Client] first disclosed all the details with regard to what had happened". [The Client] admitted during cross-examination that she was advised there may be itchiness and that her nurse may need to check for a rash. [The Client] denied that [Nurse A], the nurse she briefly had upon arrival to the Unit late in the day shift of December 8, 2009, checked for a rash. [The Client] stated that [Nurse A] just gave her the medication for her itchiness. After [the Client] told the Facility in March of 2010 that the Member had directed her to lift her gown above her breasts, the Facility conducted a further investigation. [Dr. A] advised [the Client] during the investigation of this complaint that it was not inappropriate for a nurse to make a request for a [client] to lift their gown to investigate a rash. When asked if she accepted that explanation, [the Client] replied, "I certainly didn't think he was lying to me." But when asked if she believed that was an explanation of what the Member had done, [the Client] replied, "No, I accepted it as an explanation of what a nurse would commonly do." [The Client] s view was that when the Member gestured for her to lift her gown, he was not doing it to check for a rash but was doing it so he could look at her breasts for a non-clinical purpose. (b) The Bladder Scan [The Client] testified that during her first interaction with the Member on the night shift of December 8-9, she advised the Member that she could not urinate and was experiencing pain. Later in the evening, [the Client] was having difficulties voiding and again rang for the Member to assist her. [The Client] says the Member told her to keep pushing your pain pump. The Member told [the Client] he was going to have to do a bladder scan to check her bladder. According to [the Client], the Member left the room to retrieve the bladder scanner. She stated that after he left, she got up and went to her doorway to look for him because she was in quite a bit of discomfort. She reported that she found the Member standing just outside her room. She

8 stated she reported to him that she was in quite a bit of pain and that he replied, "just keep pushing your pain pump." She stated that after this, he did go and get the scanner. [The Client] was asked if she knew what time this occurred. She stated she wasn't wearing a watch and did not remember if there was a clock in her room. She acknowledged that she was not tracking time but stated she knew it was after 7:00 p.m. but before midnight. [The Client] testified that when the Member returned to her room with the bladder scanner, the Member laid her bed down flat to perform the scan. [The Client] stated that he did not explain the bladder scan to her. She stated she was wearing a hospital gown and knee high stockings to prevent clotting. When asked to describe what occurred next, [the Client] stated, "He put my bed down so I was laying down flat, and he pulled the covers down." When asked if she recalled how far, she responded, "I don't know if it was to my knees or below my knees or just above my knees or to my ankles...well, it wasn't to my ankles, but I do know that it was down far enough that it exposed my vagina." She stated, "He asked me to open my legs and he...again, he sort of gestured by touching the side of my leg." When asked how wide she opened her legs, she gestured with her hands and responded "maybe a foot, 12 inches." After some discussion about just how wide her gesture had indicated, [the Client] was asked if she could be more precise about how wide her legs were open and she replied, "No. I know that my vaginal area was exposed. [The Client] stated that during the scan, her gown was pulled up above her belly button, but it was below her breasts. She cannot recall how her gown got into that position, whether she put it there, or the Member did. [The Client] described gel being applied to her abdomen for the bladder scan. [The Client] has no recollection of the Member cleaning the gel off her abdomen following the scan. Nor can she recall who pulled the covers up or her gown down after the scan. [The Client] stated that initially she had no concerns about the scan and that it wasn't until the nurse on the day shift following the Member s shift ([RN B]) did a bladder scan the next day that she realized the way the Member had done it was inappropriate. When asked if the Member went into the washroom either before or after he spoke to her to look in the toilet, [the Client] responded, "No". Later, she clarified that she did not remember. In response to questions asked in cross-examination regarding details around the bladder scan, [the Client] responded several times with expressions of, "I assume", "[the Member] would have," "I would have," or "I must have". When Ms. McIntyre suggested that [the Client] may be reconstructing details that she could not actually remember, [the Client] denied doing so. However, when Ms. McIntyre pressed [the Client] to admit that she could not remember the details from three years ago, [the Client] responded, "No I can't remember the kind of detail that doesn't involve being touched inappropriately, no." Initially, [the Client] described the scan as follows, "And then the wand or the...scanning device, and, well, I guess took a scan and said that my bladder was full, and he said he would have to do an in-and-out catheter to drain my bladder, and that he would have to teach me how to do that to myself. And I didn't think anything of that because my [relative] had a hysterectomy years and years ago and told me this horror story about how she had to catheterize herself, and honestly, I

9 wasn't even too sure if it was true or not true because I had never heard of that before. So when he said that, I thought, okay, I guess you do have to do that." During cross-examination, [the Client] denied that she told the Member that she could not do self-catheterization because she was in too much pain. [The Client] denied being told by anyone that the doctor had ordered self-catheterization (although such an order does appear in [the Client] s chart). [The Client] identified in her earlier evidence that she considered it a "horror story" when her [relative] had related her experience about self-catheterization. [The Client] agreed in cross-examination that she could "not imagine having to catheterize myself." [The Client] denied that self-catheterization was ever mentioned to her again. The panel heard evidence that an order to teach [clients] self-catheterization was quite common. There were some aspects of [the Client] s testimony concerning the bladder scan and events surrounding it that the panel found especially troubling. 1. There was an issue during the hearing about where the Member placed the wand during the bladder scan, and where he ought to have placed it. [The Client] does not appear to have raised this issue at all with anyone at the Facility during its initial investigation. The details involving the placement of the bladder scan wand were also not described during [the Client] s evidence in chief. It was during cross-examination that [the Client] first testified that she recalled the Member had placed the wand on her pubic bone. When Ms. McIntyre challenged [the Client] on her recollection of the placement of the wand, suggesting that [the Client] could not be correct because the scanner cannot scan through bone, [the Client] responded, "I am correct on that. I don't know how the bladder scan works, but I know that's where he had the wand." Ms. McIntyre probed again, asking, "So that's what your memory now tells you?" and [the Client] responded, "Yes". Then Ms. McIntyre asked her, "And you can't admit that maybe you are wrong?" to which [the Client] replied "No". However, [the Client] contradicted herself on this point, when earlier in her cross-examination she described the placement of the wand as "it was just kind of centralized between my incision and my pubic bone. Like, below my incision". On this point, the panel notes that [RN B] and the expert witnesses on nursing standards all agreed that placement of the wand over the pubic bone would obstruct the scan of the bladder. The Member could not have had the wand positioned over the pubic bone and still have achieved a diagnostic result. 2. When asked whether or not there was a measuring device (commonly referred to as a hat ) in the washroom to measure urine output, [the Client] stated "No there was not". She expressed no doubt about this and was very firm. However, it is clear to the panel that [the Client] is incorrect on this point. Both the Member and the nurse who followed him on the day shift ([RN B]) testified there was a hat in the toilet. [RN B] said that [the] hat was already in the toilet when her shift began (and the Member s shift ended). Both the Member and [RN B] charted [the Client] s urine output, which they only could have done if there was a measuring device such as the hat in the

10 toilet. This evidence conflicts completely with the very firm recollection of [the Client] that there was no "hat" in the washroom. While perhaps not a lot turns on whether or not there was a "hat" used to measure urinary output in the toilet, the inability of [the Client] to remember this item which is routinely used and in fact was repeatedly used by her during her hospitalization is in sharp contrast to her absolute and certain response of "No, there was not". Her evidence on this point is contradicted by the chart and the testimony of both the Member and [RN B]. It would be one thing for [the Client] to forget the hat was there. But for her to firmly deny it was concerning to the panel. [The Client] recalls that after the bladder scan, the Member then left the room, telling her to "keep pressing the pain pump." He returned a short time later with the catheterization equipment. (c) The Catheterization The essence of this allegation against the Member is that during the catheterization, after the tube had been inserted, [the Client] says she felt the Member s fingers moving up one side of her vagina, over her clitoris and back over the other side of her vagina. This continued a number of times, but she could not recall how many times it happened. In terms of the details of the catheterization, [the Client] says the Member did not tell her anything about how he was going to do the catheterization. When asked what he did to clean or prepare her for the procedure, [the Client] replied, "I don't really remember". When asked if she remembered whether or not the Member cleaned her genital area, she replied, "I don't think he did, but it wasn't something I was really paying...i wasn't really paying attention to the procedures that he was doing." [The Client] stated that during the catheterization she was laying down flat and that she couldn't see past her belly because it was bloated. When asked if there was anything about the insertion of the catheter that bothered her, [the Client] replied, "No." [The Client] stated that after the catheter was inserted, "I could feel his fingers moving up one side of my vagina and over my clitoris and back down the other side of my vagina. And he continued to... he continued back up the other side of my vagina and across my clitoris and back down a number of times." [The Client] was asked what she referred to when she used the word "vagina", and she replied "everything except the anus". She highlighted the area on a diagram [ ]. [The Client] admitted that she did not know which hand the Member allegedly used and she could not tell how many fingers were involved or how many times he made the motion that she described as inappropriate. She could not recall whether it was four times or ten times. [The Client] reported being embarrassed, and unable to respond or say anything. [The Client] demonstrated on an anatomical mannequin the motion that she felt that the Member had used.

11 When she was asked how long the Member touched her genitalia, [the Client] responded that she had no concept of time. It could have been one or twenty minutes. When asked to describe how she felt during the alleged incident, [the Client] stated, "I was kind of in shock. Like, I...like, it's hard to believe that it's happening. And it's embarrassing and disgusting, and I didn't know what to do. I just laid there and stared at the ceiling and felt almost paralysed, you know. I just couldn't do anything. I just lay there." In cross-examination, Ms. McIntyre asked [the Client] if she recalled the Member using the index finger and thumb of his non-dominant left hand to spread her labia in order to visualize the urethra. [The Client] responded that she did not remember him doing that but conceded he would have to in order to expose the urethra for catheterization. Ms. McIntyre asked, "You are not denying he did it though?" to which [the Client] responded, "Absolutely not. No, I am not denying it." During cross-examination, Ms. McIntyre further probed the recollection or lack thereof of the details [the Client] provided around the catheterization. [The Client] acknowledged she did not remember the drapes contained in the catheterization tray being applied but she rejected the suggestion that drapes would have minimized how much she was exposed. [The Client] had no memory of the Member cleansing her vaginal area with a cotton ball dipped in iodine, or that the motion used to cleanse the area required the cotton ball be moved down the left, right and middle of her vaginal area touching the clitoris in the process (a movement similar to the one [the Client] described as the inappropriate, sexually abusive touch). [The Client] admitted that she had no recollection of this process at all and went on to say, "It wasn't something that stood out, because it wasn't something that I felt would be an inappropriate touch. I know he is between my legs. I know he has to touch my vagina to clean it, drape it, insert a tube, drain... I know he has to touch me, I am not denying he didn't touch me, but I am saying after the tube, he continued to touch me in a manner that was not appropriate. At one point Ms. McIntyre posed the question, "So when you were touched and you felt touch, you assumed it was [the Member s] fingers, correct. [The Client] responded, "No". When Ms. McIntyre requested clarification, [the Client] responded, "No, I don't remember that". Ms. McIntyre asked, "You didn't actually see that it was [the Member s] fingers that were touching you, did you? [The Client] acknowledged this, saying, "No, I did not." Ms. McIntyre pressed on, "So you interpreted what you felt as being his fingers? [The Client] responded, "Yes that is correct". Ms. McIntyre put it to [the Client] that during the catheterization, the Member touched [the Client] with cotton balls dipped in iodine, and asked if [the Client] remembered that. [The Client] replied that she did not remember but conceded that she could not deny that the Member did that. [The Client] went on to say that although she thought she would be able to tell the difference between fingers and a cotton ball dipped in iodine, she could not swear "for certainty that I would know the difference."

12 Ms. McIntyre asked if [the Client] saw the catheter go in her urethra and [the Client] replied that she did not. Ms. McIntyre asked how [the Client] could know when it was inserted and [the Client] responded that she could recall feeling it. Ms. McIntyre asked [the Client] if she could remember feeling the catheter slip back out and [the Client] replied that she could not remember that. Ms McIntyre then said, "What I put to you is the touching you explained yesterday to the Committee was actually the touching that [the Member] did and was required to do in the process of cleaning your vaginal area for catheterization." [The Client] responded saying "And I would say that you are 100 percent wrong." [The Client] testified that the inappropriate touching stopped when the container collecting the urine from the catheter was about to overflow. [The Client] stated that she didn't know if the container did overflow but it was filling up and the Member had to tend to that, to find something else to drain the rest of her bladder, so he left her bedside and returned with another receptacle and a cup and he bailed the urine from one receptacle to another. Logically if the urine had overflowed, the bed would need changing or she would have had to lie in a wet bed. This is possibly another fact which [the Client] was unable to remember. [The Client] stated that when the catheter was removed, she then began to cry quietly and the Member apologized three times, saying he didn't mean to hurt her. [The Client] did not observe any evidence of sexual arousal in the Member while he was catheterizing her. [The Client] recognized that it was necessary for the Member to look at her vaginal area during the procedure and stated she was not surprised by that, but went on without further question to state, "but what I was surprised by and disgusted by and humiliated by was the way he was fondling my vagina while my bladder was draining". In cross-examination, Ms. McIntyre asked [the Client] if the Member cleaned her vaginal area when the catheterization was complete. [The Client] stated that she could not remember. Ms. McIntyre queried, "But at this point, you were paying close attention to what he was doing, I assume, right? [The Client] responded that once the catheter was removed, all she could recall was crying. Ms. McIntyre put to [the Client] that her emotional state was such that it interfered with her ability to remember what happened. [The Client] responded, "Yes". [The Client] testified that she stopped drinking fluids through the night so that she would not require another catheterization. She said she pretended to sleep for the rest of the shift so as to avoid interacting with the Member. [The Client] denied requesting an additional bladder scan from the Member in the morning. [The Client] testified that all night long she kept running the details of her encounter with the Member through her mind. She related that she could see fine, hear fine, move fine and talk fine. She also stated that emotionally she was lost, and didn t know what to do. [The Client] denied during cross-examination any recollection of the Member providing her with a glycerine suppository around 0600 hours on the morning of December 9, [The Client]'s testimony conflicts with the testimony of the Member on both the suppository and the request for a second scan. The chart verifies that the suppository was ordered.

13 Ms. McIntyre tested other details of the evidence in chief [the Client] provided the previous day. For example, [the Client] had stated that following the catheterization procedure, the Member raised the head of her bed, however in cross-examination [the Client] admitted that she did not know whether she raised the bed or if the Member did. (d) The Care Given by [RN B] The following morning, December 9, 2009, another nurse ([RN B]) took over care for [the Client] starting at 0700 hours. [RN B] has been registered with the College as an RN since [RN B] has been working at the Facility since September She initially worked on a surgical unit for a year and a half before moving to the Unit where these events unfolded. [RN B] is currently working fulltime and that was the case in December She worked both day and night shifts and at the time of the incident was the charge nurse 90% of the time when she was on night shift. She is a very experienced nurse. She reported catheterization being one of the most common procedures on this Unit. [The Client] testified that she considered [RN B] as a breath of fresh air. [The Client] stated that [RN B] offered her a pair of mesh panties, and a fresh maxi-pad. [The Client] testified that [RN B] took her to a shower room down the hall and assisted her with a shower which [the Client] specifically recalled as being great. During cross-examination, [the Client] acknowledged she has no memory of a shower stall in her room. She stated that [RN B] took her out of her room to another area on the ward where [clients] shower. [The Client] was shown a diagram of her room. The diagram demonstrated that there was both a toilet and a shower stall in her room. [The Client] confirmed that she spent a considerable amount of time on the toilet trying to void. However, despite being able to look directly into the shower from the toilet, [the Client] questioned the accuracy of the diagram. As of the date of her testimony, she apparently still has no recollection of a shower being in the room. The accuracy of the diagram was not disputed by either counsel. [The Client] did ultimately acknowledge that it was possible that a shower stall was located in her room and that she simply could not remember it being there. More troubling for the panel is [the Client] s clear recollection of the shower she says she had. [RN B] testified that on the morning of December 9, 2009, she assisted [the Client] to the sink in her room and helped her to wash. [RN B] denied that she assisted [the Client] with a shower, stating, "She had a big large incision over her suprapubic area, and we are not to shower people with incisions". [RN B] testified that her recollection of not showering [the Client] is confirmed by the charting [ ], with the entry she recorded at 1130 hours on the morning of December 9, Not remembering a shower stall in your room speaks to a memory deficit that might be explainable by the passage of time. Recalling exiting the room and going to a shower somewhere else on the ward and being assisted with that shower by a nurse, when this did not actually occur, is more concerning. While [the Client] obviously believes that what she is saying is true, the panel cannot rely on the accuracy or veracity of her memory or her testimony. If [the Client]

14 believes she took a shower that she did not take, it casts doubt on [the Client] s ability to accurately recall events. This is one of the factors that leads the panel to conclude that [the Client] s allegations against the Member are more likely to be a misremembered and misinterpreted sequence of events. [The Client] s recollection of events was challenged in other ways. According to her testimony, after [RN B] gave [the Client] mesh underwear and helped her to shower, [RN B] then performed a bladder scan followed by a catheterization. [The Client] said that when [RN B] came in with the scanner, [the Client] was laying down in bed and she went to push the covers down. [RN B] told her, No, you don t need to do that. [The Client] said this surprised her because she was thinking that s what she had to do before, with the Member and the bladder scan he had performed. [The Client] stated that for the bladder scan [RN B] performed, her gown was pulled up, below her breasts, exposing her abdomen and that gel was put on, and that her bladder was checked with no need to pull the covers down below her pubic area. She said this scan indicated that [the Client] needed another in/out catheterization. [The Client] testified that as a result of the bladder scan, [RN B] performed an in and out catheterization. [RN B] didn t touch [the Client] s vagina after insertion of the tube. [The Client] described how she compared the techniques employed by both of the nurses who had performed a bladder scan and catheterization on her. [The Client] described this comparison as running through her mind while [RN B] performed the catheterization. She mentally noted the differences in the care of the two nurses. [The Client] recalled that the urine tray was overflowing, or was filling up, and that when [RN B] finished draining the bladder and pulled out the catheter, [the Client] burst and reported to her that the nurse who had been on shift before [RN B] had touched her inappropriately. [The Client] testified that she hadn t disclosed anything to [RN B] earlier because she wasn t sure if she could report it. There are some significant ways in which [the Client] s recollection of the care given to her by [RN B] differs from the evidence of [RN B] and the charts. [RN B] testified that she did not start her first interaction with [the Client] by giving her mesh underwear and a shower. Rather, [RN B] says she performed her initial assessment of [the Client] between 0700 and 0800 hours. This assessment included measuring [the Client] s urinary output by using the hat in the toilet in [the Client s] washroom (the same hat that [the Client] says was not there). The output was measured between 0700 hours and 0800 hours, and [RN B] said she did her first bladder scan on [the Client] within 20 minutes to determine urinary retention. When asked, On this first bladder scan, as you prepared, in the way you have just described, did [the Client] push the covers down further and did you tell her she didn't need to do that? [RN B] replied, No, she did not. [RN B] testified that there was nothing unusual when she performed the first bladder scan and [the Client] said nothing to her regarding the Member. [RN B] testified that because the residual urine was less than 200 cc's, which is within acceptable range, there was no catheterization done following the bladder scan [RN B] did between 0700 and 0800 hours. [RN B] s evidence was supported by her charting entries.

15 [RN B] testified that after this first bladder scan, she helped [the Client] wash in the sink. She then gave her mesh underwear and a sanitary pad. [RN B] recalled explaining to [the Client] that now that she was up and around in the daytime, [clients] often experienced more vaginal bleeding. She explained that on night shift it is not a big issue as the [client] is usually lying down. [The Client] did not complain to [RN B] at this point about the Member not providing [the Client] with mesh pants, and there was no indication at this point that [the Client] was upset. [RN B] testified that between 1000 and 1100 hours, at some point following the first bladder scan, [RN B] changed the sheets on [the Client] s bed while [the Client] sat in a chair and talked about some of her concerns. [The Client] was worried about her [child] getting on the school bus. She was worried about the surgery, and whether both ovaries had been removed and whether she would go into menopause at [a young age]. She was worried that she was having trouble voiding urine and that she might be sent home having to do self-catheterizations. [RN B] recalled that [the Client] had tears welling in her eyes at this point, but was not actually crying. This did not strike [RN B] as unusual, since in her experience many hysterectomy [clients] are teary post-operatively. [The Client] did not recall this conversation with [RN B], but in crossexamination she did not deny it had occurred and agreed it was possible that she had voiced these concerns and was teary-eyed. Later that shift, between 1200 and 1230 hours, [RN B] measured [the Client] s urine output again. Following that measurement, she performed a second bladder scan. There was nothing unusual about the bladder scan, and [RN B] denied that [the Client] pushed the covers down and that [RN B] said, No, you don t need to in response. This second bladder scan showed more than 700 cc s of retained urine, and so an in and out catheterization was necessary. Once the catheterization was complete and [RN B] was cleaning up, [the Client] began to cry. If [RN B] is to be believed, then that means [the Client] has forgotten some events (the first bladder scan, the conversation while [RN B] changed her sheets), has imagined others (the shower, being told by [RN B] that she didn t need to pull her sheets down for a bladder scan) and mixed up the timing and sequence of other events. That she would mix up the timing and sequence of events is not implausible, because [the Client] testified many times that she was unsure of time. However, it seems improbable that [the Client] would not know that she did not have a catheterization after the first bladder scan [RN B] did. The first scan is charted so the only logical explanation is that [the Client] has either forgotten that event or she was confused and merged it with a subsequent procedure. In either case, it is yet another fact that casts doubt on [the Client] s reliability. (e) [The Client] s Report to [RN B] There was also a dispute about what [the Client] actually said to [RN B] when [the Client] reported her concerns about the Member to [RN B] following the catheterization on the afternoon of December 9, 2009.

16 [The Client] related the catheterization procedure and the conversation with [RN B] as follows: "I was laying down and the covers were pulled down and I had to spread my legs. She inserted the tube and she didn't touch my vagina following the insertion of the tube. At some point she also had to... the tray was overflowing as well and... I don't know if it overflowed, but it was filling up, and when she finished draining my bladder, she pulled out the catheter and I started to cry, but it was like...like, I burst and I said to her, "There's something that I have to tell you. And I said, The nurse that was on before you touched me inappropriately. And I was talking very fast and I was crying and I said, Why did he do that? He didn't give me underwear. He didn't...he pulled the sheets down below my knees? Why did he do that? And I was just crying and she said to me...when I said that he had touched me inappropriately she said...she looked at me and she said, What do you mean? And I said, He touched my clitoris area." The issue of the mesh underwear formed a significant part of [the Client]'s complaint against the Member. It appears to be the catalyst that started her thinking about the differences in care between the Member and [RN B]. During cross-examination, [the Client] acknowledged that [Nurse A], the nurse who provided her care on day shift when she first arrived on the Unit from recovery, did not provide her with mesh panties, even though [the Client] was getting up to toilet. [The Client] acknowledged that she was not concerned that [Nurse A] did not give her panties. It struck the panel as strange that [the Client] would draw such sinister conclusions from the Member s failure to give her mesh underwear on the night shift, yet she has no complaints about not being provided mesh underwear by the day nurse that the Member took over from. During cross-examination, [the Client] admitted that when she reported the alleged incident to [RN B], she did not include the detail about the Member apologizing three times. [The Client] also admitted that she did not report the itchiness and the alleged lifting of the gown to [RN B] either. [The Client] stated, "What I gave her was a burst of emotion and thoughts that were coming to my mind at that particular time. I was very emotionally upset at the time." She described her outburst as sobbing and in my mind I was hysterical. [The Client] stated that following the conversation, [RN B] just left the room and no one came back to see her. She described sitting up in bed crying with the curtain surrounding the bed. She describes seeing [RN B]'s feet as she left the room and stated that [RN B] did not come back. In her testimony, [RN B] absolutely denied that [the Client] used the words "inappropriately touched". She did not perceive [the Client] to be sobbing or hysterical when she relayed her concerns about the Member. She was upset and crying, and on a scale of 1 to 5, she would describe [the Client] as a 2 (with 5 being the most upset). [RN B] believed their conversation about the Member lasted 3 to 5 minutes, and while [the Client] was crying, she was speaking in a normal tone and at a normal volume. [The Client] seemed to be coherent and able to articulate what she wanted to say. From the conversation that [RN B] had with [the Client], [RN B] believed that [the Client] was uncomfortable having a male nurse which in her opinion is quite common for gynecological [clients]. [RN B] was not alarmed by anything that [the Client] disclosed to her. She understood the specifics of [the Client] s concern to involve three complaints. First, there was a complaint that [ ] the Member had not given [the Client] mesh pants. [RN B] explained she was not concerned about that. There was no policy at the Facility about mesh pants, and they are more

17 important during the day as opposed to the night since the [client] is up and moving about more during the day. Second, [RN B] recalled that [the Client] complained that the Member pulled the covers down too far and flopped her legs open. [RN B] specifically recalled that [the Client] used the word "flopped" because [RN B] thought it was an unusual way to describe things, as [the Client] would have had complete control of her legs. Third, [RN B] recalled that [the Client] complained that the Member might have had contact with [the Client] s clitoris during the catheterization. [RN B] was not concerned that the Member may have had contact with [the Client] s clitoris during catheterization, as there is a proximity of the urethra to the clitoris, there can be difficulty visualizing the urinary meatus, the area can be slippery, the labia is held open by the fingers, and there is always the potential to touch the clitoris during cleansing. [RN B] testified [the Client] never used the word inappropriate with regards to the touching. [RN B] testified that she did not think anything was wrong when [the Client] said the Member had touched her. [RN B] said, I thought that she was not comfortable having a male as a nurse, not comfortable with his care. [RN B] stated that by the end of the conversation, [the Client] had settled and was teary but not actually crying. [RN B] asked [the Client] if she wished to speak to the Charge Nurse. [The Client] said no. [RN B] reported [the Client] s concerns to the Charge Nurse at about 1500 hours. She reported them as she had understood them: that they were concerns about the quality of care [the Client] had received from the Member, and not as concerns about sexual or other abuse. The Charge Nurse checked that the Member would not be providing care to [the Client] that night. Following [the Client] s disclosure to [RN B], there were further interactions between them. [The Client] did not recall the time but on the first post-disclosure occasion, she testified that [RN B] was just performing her regular rounds and nothing was mentioned about their previous conversation regarding the Member. [The Client] did not raise the subject either. There was a second interaction that [the Client] recalled. She was uncertain of the time, but said that at some point she was feeling nauseous and had vomited a bit. [RN B] gave her some Gravol and was just leaving the room when [the Client] asked her what was happening. [The Client] stated that [RN B] asked, "What do you mean?" [The Client] replied, "Is he coming back? [The Client] said that [RN B] said, "No" and while [the Client] forgets the exact terminology used, she believed the gist was that the Member had been reassigned. [The Client] stated that she asked [RN B], "Does he even know? and in turn [RN B] asked "Do you want him to know?" [The Client] says she replied, "Of course I do." [The Client] related that she got upset again and [RN B] asked her again if she would like to speak to the Charge Nurse. [The Client] testified that she said, "No, I want to be left alone." [The Client] said, "I felt like I was a laughing stock. I felt like everybody knew and they were all having a good laugh about it." [The Client] went on to report that, "All I thought was everybody knew and nobody cared. I was not able to control my emotions at that time. I was a mess. Clearly I was emotionally distraught and no one came to help me.