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Unnamed Member RN
Allegations and Plea
The College alleged that the Member sexually abused a client; verbally, physically or emotionally abused a client; and failed to document appropriately. The College also alleged that this conduct would be regarded as disgraceful, dishonourable or unprofessional.
The Member denied the allegations and a hearing was held.
The Panel received 75 exhibits and heard from 11 witnesses, including the Member, the Client and four experts.
The Client had undergone an abdominal hysterectomy and had vaginal bleeding, discharge and swelling. The Member provided care over the night shift and performed a catheterization.
The Client testified that she told the Member she was feeling itchy and he gestured for her to lift her gown above her breasts. He said he had to check for a rash, but he did not check any other part of her body. During a bladder scan, the Member pulled the covers down to expose her vagina, asked her to open her legs, and placed the scanning wand on her pubic bone. In cross-examination, the Client denied being told that the doctor had ordered self-catheterization even though her chart included such an order, insisted the wand was placed on her bone even though the scanner could not scan through bone, and insisted there was no urine measuring device in her washroom even though the chart and the testimony of two nurses showed that there was.
The Client testified that when the Member performed the catheterization, she felt his fingers move up her vagina and over her clitoris a number of times after the catheter was inserted. She could not recall how many times this occurred or how long it took. When the catheter was removed, she began to cry; the Member apologized three times and said he had not meant to hurt her. In cross-examination, the Client could not remember whether the Member had cleaned her vaginal area with a cotton ball dipped in iodine. The Client acknowledged that her emotional state might have interfered with her memory.
Nurse B provided care on the following day shift. The Client testified that Nurse B took her down the hall for a shower, then performed a bladder scan and catheterization. During the scan, the Client pushed down the covers and Nurse B told her it was not necessary. Nurse B did not touch the Client’s vagina after insertion of the catheter.
Nurse B testified that she did not tell the Client there was no need to pull down the covers for the scan, and that she did not take the Client down the hall for a shower because the Client had a large incision and was not to be showered. Nurse B helped the Client wash in the sink in her room. The chart also indicates that the Client was not showered.
After Nurse B’s catheterization, the Client became upset and teary. She told Nurse B that, when the Member performed a catheterization the previous evening, he pulled the covers down very low and had the Client open her legs so that she was exposed. He did not provide mesh pants, as Nurse B had done, and he touched the Client’s clitoris.
The Client and Nurse B both testified that Nurse B asked whether the Client wanted to speak to the charge nurse, that the Client declined, and that the Client said she did not want the Member to be her nurse. Nurse B did not ask for any more information, and advised that she would talk to the charge nurse and that the Member’s assignment would be changed. The Client testified that she used the words “inappropriate touching”; Nurse B testified that the Client did not use these words. Nurse B did not appreciate that the Client’s complaint was of sexual abuse; Nurse B believed that the Client was uncomfortable with a male nurse, which is quite common for gynecological clients.
The next day, the Client reported a sexual assault to the social worker. The Client disputed phrases indicated by the social worker to be direct quotes of the Client’s words.
The Member’s testimony differed from the Client’s in a number of instances. He denied that the Client pulled up her gown when he checked for a rash and denied ever seeing her breasts. During the scan, he asked her to open her legs slightly to check for vaginal bleeding, and then he put the sheet back up to the symphysis pubis. There was no difficulty with the catheterization and he noted no distress. He denied massaging the clitoris or doing any inappropriate touching. He denied that the Client was crying or that he apologized.
Two nursing expert witnesses testified that a client could interpret the cleansing motion associated with catheterization as a sexual assault, but that such an interpretation would not be reasonable if the procedure was properly explained to the client.
The Panel found that the evidence on the whole was not sufficiently clear, cogent and convincing to support findings of professional misconduct as alleged.
The case turned on credibility. The Panel observed that the Client admittedly had no concept of time during the alleged incident, and that she was emotionally distraught about matters unrelated to the complaint. She was medicated. More importantly, various inconsistencies in her testimony undermined the reliability of her evidence. Although her recollection was demonstrably wrong on a number of points, she insisted that her recollection was correct. She did not admit the possibility that her memory was wrong. She recalled things that did not happen. The Client’s recollection of the details and order of events differed in many respects from Nurse B’s evidence, which was solidly supported in the chart. The Panel believed that on the night in question, the Client was not convinced that something inappropriate had happened. After comparing the Member’s care with that provided by others, the Client interpreted gestures, misremembered the sequence of events, and subconsciously filled in details to complete a memory she later believed to be true.