A registered nurse in Ontario has lost his appeal of a five-month suspension following allegations of inappropriate behaviour.
Paul Hirtle is a registered nurse and has been a member of the College of Nurses of Ontario since 2016. That year, he was hired as a clinical instructor for Confederation College at St. Joseph’s Hospital in Thunder Bay, Ont.
He was responsible for supervising a group of seven nursing students during their clinical placement at the hospital.
Allegations of inappropriate behaviour
In 2018, allegations against Hirtle were referred to the College of Nurses’ Discipline Committee. It was alleged that he engaged in appropriate conduct toward and/or sexual harassment of two nursing (identified as NK and DH) students in 2016.
It was alleged that he:
- made sexual jokes and comments
- stared at the students in an uncomfortable manner
- flicked NK’s ponytail;
- winked at NK and rubbed her back;
- sent voice and text messages to DH of a sexual nature, including a picture of a man pulling down his scrubs to show his penis (no face shown) and a voice message that stated “I miss you. My wife is away” or words to that effect;
- touched DH’s buttock while demonstrating how to move a client from her bed;
- sent text messages to NK of a sexual nature; and/or
- told NK that he wanted to “have sex with her butt” or words to that effect.
A contested hearing took place from Jan. 21 to Jan. 24, 2019.
Among the testimony was the following, according to the court:
“A number of students testified that the appellant (Hirtle) made sexual jokes and had discussions with sexual innuendo, specifying a joke about a hot dog and repeatedly calling NK a “ball popper”. There was also evidence from NK about the appellant winking, looking her up and down and touching her ponytail and back, some of which also formed part of the testimony of other students. DH testified that the appellant had touched her on the hips above her buttocks when doing a demonstration and about holding her arm for longer than normal on one occasion. The appellant denied all the allegations of improper conduct in his testimony, including the jokes and other alleged words and actions.”
The panel hearing the 2019 case found that during the clinical placement, Hirtle made a sexual joke and comment (the hot dog joke and ball popper comment) which was a breach of professional standards and was “dishonourable and unprofessional conduct.”
It also said he started at NK in an uncomfortable manner, winked at NK and rubbed NK’s back. It also found he sent voicemail messages to DH of a sexual nature following the clinical placement.
The panel settled on a five-month suspension, a reprimand, regular meetings with a regulatory expert for at least six months with reporting to the College as well as steps that had to be taken for a period of 18 months after his return to practice.
Hirtle appealed to the Ontario Divisional Court.
The appeal
Among other things, Hirtle said the panel’s suspension was too lengthy. It was at the upper-most end of the penalty range without sufficient justification.
Hirtle said the cases relied upon by the College of Nurses involved sexual harassment and sexual touching, but the panel made no findings regarding sexual touching. He also pointed to cases with a shorter suspension, submitting that the conduct in those two cases was more serious.
The court said that, for it to overturn the panel’s suspension, Hirtle had to establish that it made an error or that the penalty was clearly unfit. It found no such evidence.
“The Panel’s reasons for decision show that they considered appropriate principles including the goals of specific and general deterrence, the goal of remediation, aggravating factors such as the appellant’s role over nursing students and mitigating factors including his good character evidence,” the court said.
“The Panel considered a number of prior decisions and how those decisions were similar to or different from the misconduct decision in the appellant’s case. The Panel considered the nature and extent of the conduct that gave rise to the misconduct findings and the appellant’s submissions about the impact of the allegations on him and his family.”
The panel noted that the main point of contention was the five-month suspension.
“The Panel considered the consequences of the suspension but concluded that the purpose of the suspension was to protect the public and satisfy the twin goals of specific and general deterrence,” the court said. “The penalty decision is owed substantial deference. The appellant has not demonstrated that it was clearly unfit.”
It dismissed Hirtle’s appeal and ordered him to pay costs fixed at $20,000, including both the motion and appeal.
For more information see Hirtle v. College of Nurses of Ontario, 2022 ONSC 1479 (CanLIII)
