James Leroux 09395549
Allegations and Plea
The College alleged that the Member placed the client’s hand on the Member’s penis, that this constituted physical or emotional abuse, and that this conduct would be regarded as disgraceful, dishonourable or unprofessional. The College also alleged that the Member failed to keep appropriate records, but this allegation was dismissed.
The Member denied all the allegations.
Seven witnesses, including the Client and one expert, were called by the College. The Member did not testify or call witnesses. The Panel also received documents as exhibits, including a DVD with video security-camera footage of the corridor, which captured entry and exit of all persons into the room. Video footage from the same time period from another camera at a different angle was missing.
The Member worked in the emergency department of a hospital. The Client had been out celebrating with friends or family, who became concerned about the Client’s level of intoxication and brought the Client to the ER. Upon admission, the Client was placed in a room assigned to the Member. Because the Member was caring for another client in another room, Nurse A volunteered to be the lead nurse for the Client and provided care over the next several hours.
Shortly before discharge, the Client woke up and immediately demanded to speak to someone to report an incident of sexual misconduct. Nurse A received the full complaint and later told the Member about it. The Client was discharged soon after with a copy of part of the chart and instructions to contact the nurse manager about the complaint. After returning home, the Client reported the incident to the police.
It was alleged that while the Member was alone in the room with the Client, while the Client was sleeping, the Member placed the Client’s hand on his penis and began masturbating.
The Client testified as follows: the Client’s arm was moved, which caused the Client to open the Client’s eyes. The Client was unable to speak or react because of the combination of alcohol and medication, but the Member realized that the Client was awake and he fled the room. The Client drifted back to sleep but, upon awaking, immediately became agitated and asked for a nurse in order to report what had happened.
Nurse A testified that she wrote a note indicating that the Client reported that the Member pulled the Client’s head to his crotch after he placed the Client’s hand on his penis. Nurse A wrote this note after discussions with Nurse B and the Member, and stated, “I wasn’t going to write it down the way the Client said it, but I knew what the Client meant”. Nurse B could not recall specifically how the act was described. Nurse A’s note also indicated that the Member was never alone in the room with the Client. The Member did not correct this. The Member did not advise Nurse A or Nurse B that the Client’s hand fell off the bed and hit him in the crotch.
Video footage showed that the Member was in the room alone with the Client for a period of time. Nurse A had not realized that the Member did not leave the room when she did on one occasion.
The Human Resources Manager testified that, during her investigation into the matter, the Member said that he heard a monitor ring and went to check on the Client alone. As he was leaving the room, the Client began to vomit. He went to check the Client and the Client’s hand flopped off the bed and hit his genital area.
The Patient Care Nurse Manager testified that the Member’s explanation was surprising, since the chart made no mention of the oxygen alarm having sounded.
The expert opined that the conduct described in the allegation would constitute an abuse of power and sexual abuse. This opinion was based on the imbalance of power in the nurse-client relationship. Placing a client’s hand on a nurse’s penis is exploitive, disrespectful and humiliating. Such behaviour contains elements of sexual, physical, emotional and psychological abuse.
The expert also opined that if hospital policy called for charting by exception, she would not necessarily expect detailed documentation if a nurse went into a room to check a monitor, straightened the bed and then noticed the client retching and cleaned them up.
The Panel dismissed the allegation about documentation and found that the evidence supported findings of professional misconduct for the remaining allegations. The Member engaged in conduct that would be regarded as disgraceful, dishonourable and unprofessional.
Although the Client’s level of intoxication was relevant, the Client’s recollections were supported over and over again by the video evidence. There was also a lack of evidence to support a reasonable alternative explanation for what occurred while the Member was alone in the Client’s room for the five-minute time period in question. The Panel also found that Nurse A was mistaken in her description of the complaint (that the Member pulled the Client’s head into his crotch).
Evidence and Submissions on Order
The College submitted into evidence a victim impact statement written by the Client, and sought an oral reprimand and immediate revocation of the Member’s certificate of registration, as required by legislation. The College also submitted that it was appropriate to order the Member to reimburse the College for funding (for therapy and counselling) provided to the Client in the amount of $5,000.
Two letters of reference regarding the Member were entered into evidence. The Member’s Counsel submitted that the decision was being appealed and that the Panel should exercise discretion to suspend the order until after the appeal is heard. Instead of immediate revocation, the Panel should impose terms, conditions and limitations. There should be no order for reimbursement.
The Panel accepted the College’s submission. The order adheres to the principles of sanction, providing public protection, specific and general deterrence, and an opportunity for rehabilitation. The Panel believes it is fair and appropriate that the Member contribute to healing the damage he inflicted on the Client.
The Member sought suspension of those parts of the order not automatically stayed by his appeal until such time as the appeal is heard. While the Panel has the discretion and jurisdiction to suspend those terms of the order that are not automatically stayed (including the mandatory revocation), the Panel found that there were no specified reasons and unique or extraordinary circumstances that warranted suspending the order in this case.
This Member sexually preyed on a defenceless client. The Panel had no faith that terms, conditions or limitations on the Member’s practice would protect the public, especially a public who under various circumstances may not be conscious of the people or the events taking place around them. The predatory nature of the act committed by the Member left the Panel extremely reluctant to return the Member to nursing practice while he awaited appeal. Therefore the Panel chose not to exercise its discretion to suspend the mandatory provisions of this order, including the revocation.