Administrative law – Decisions of administrative tribunals – College of Nurses – Psychiatric Nurses – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Sexual relations with former patient – Penalties and suspensions – Judicial review – Evidence – Burden of proof – Standard of review – Reasonableness simpliciter
Duval v. College of Nurses of Ontario,  O.J. No. 3992, Ontario Superior Court of Justice, October 19, 2007, F.R. Caputo, A.M. Gans and K.E. Swinton JJ.
The Appellant is a psychiatric nurse, recently graduated from college, who had entered into an improper relationship with a former patient of the hospital. The Court considered an appeal and a cross appeal from a decision of, and the imposition of a penalty by a panel of the Discipline Committee of the Respondent College in respect of certain findings of professional conduct made against the Appellant. The College argued in its cross appeal that the panel had erred in not finding that the Appellant had had a sexual relationship with his former patient because it required the College to prove those allegations “with absolute certainty”, thereby applying the wrong burden of proof to this set of charges.
The standard of review of a decision of a disciplinary body of a self-regulating profession is one of reasonableness. The Court was satisfied that the panel’s reasons were sufficient, because they adequately disclosed why the Appellant was found guilty and permitted appellate review of those findings. The Court was also satisfied that the panel made no error in law in assessing credibility, and finding that while the Appellant may not have engaged in sexual intercourse or fellatio with his former patient, his conduct of kissing, hugging and holding hands with her and sleeping with her, albeit fully clothed, constituted a sexual, romantic type of relationship, which amounted to a violation of the established standards in respect of a therapeutic nurse/client relationship and thereby crossed accepted barriers.
In terms of the cross appeal, the Court was concerned that the panel seemed to have applied the standard of proof of “absolute certainty” in respect to the allegation of a sexual relationship. However, the panel had been alive to the correct standard of proof, which it apparently applied in coming to its decision to support the finding of misconduct. The Court was also satisfied on the record before the panel, that it could reasonably conclude that proof of sexual misconduct had not been made out on the evidence.
With respect to the issue of penalty, the Court accepted the College’s position that the panel’s decision in this respect demanded significant deference. The panel had ordered the following penalty: an oral reprimand, an 18-month suspension of the Appellant’s Certificate of Registration, conditions and limitations on his return to practice for 24 months thereafter, including a restriction from engaging in mental health and psychiatric nursing, and additional requirements to work with an expert in the field of nurse-client therapeutic relationships before returning the mental health or psychiatric nursing following the 24-month period.
The Court held that the panel had, in imposing a suspension of 18 months, meted out a penalty that was beyond the limits of reasonableness in the circumstances of a first-time, young offender, considering the findings of misconduct and having regard to prior penalty decisions of the College to which the Court’s attention was directed. The Court set aside the 18-month suspension and substituted a suspension of 6 months.
The Court also found that the further 24-month limitation imposed in respect of the Appellant’s ability to seek and obtain employment as a mental health or psychiatric nurse was excessive in that it did not appear to accord with the conditions contained in the cases to which the Court had been directed. The panel’s concern to protect the public had been met by the other conditions found in its penalty. The 24-month restriction was therefore excessive and unreasonable, and was set aside.
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