College of Nurses of Ontario v. Nicole Guarrasi, 2012 CanLII 99759

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Tammy Hedge, RPN Chairperson Marianne Fletcher, RN Member Barbara Titley, RPN Member Margaret Tuomi Public Member Linda Bracken Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO MATTHEW SAMMON for College of Nurses of Ontario

• and -

NICOLE GUARRASI Registration No. JF660712 JOHN NAVARRETE for Nicole Guarrasi

Heard: November 7, 2012

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on November 7, 2012 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Nicole Guarrasi (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)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c.32, as amended, and defined in paragraph 1(7) of Ontario Regulation 799/93, in that you misappropriated property from a client or workplace, in particular, you misappropriated money and/or gift card(s) from the home of [the Client] on or about February 7, 2011, and/or other occasions;

2. You 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 as defined in paragraph 1(37) of Ontario Regulation 799/93, in that you engaged in conduct or performed acts, relevant to the practi[c]e of nursing, that, having regard to all the circumstances, would reasonably be regarded by members of disgraceful, dishonourable and/or unprofessional in that you misappropriated money and/or gift card(s) from the home of [the Client] on or about February 7, 2011, and/or other occasions.

Member’s Plea

Nicole Guarrasi admitted the allegations set out in paragraphs numbered 1 and 2 in the Notice of Hearing [ ]. The panel received a written plea inquiry which was signed by the Member [ ]. The panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts which provided as follows.

THE MEMBER

1. Nicole Guarrasi (the “Member”) obtained a diploma [ ] in 2005.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on May 31, 2006.

3. The Member was employed at [the Agency] for approximately seven years until she was terminated on February 9, 2011.

THE AGENCY

4. The Agency is located [in] Ontario. It is a non-profit, charitable organization that provides a full range of integrated health care solutions to clients in their homes.

THE CLIENT

5. [The Client] was 33 years old at the time of the incident. She lived at home with her [parents].

6. The Client was referred to the Agency after being diagnosed with a severe brain injury as a result of a car accident. The Client was completely dependent on care providers for all aspects of daily living. She was not able to ambulate and required a gastrostomy tube to feed.

7. The Member provided homecare to the Client from approximately October 9, 2010, to February 7, 2011.

8. The Member was responsible for bathing, feeding and administering medication to the Client, among other general nursing duties.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

9. In 2010, the Client’s family started to notice that small items, such as shampoo, towels and jewellery, had been going missing from their home. [One parent] also noticed money missing from her purse.

10. Although other nurses provided care to the Client, the family was able to establish that the Member was on duty when the money went missing. The Client’s family began to suspect the Member was stealing from them.

11. The thefts increased in frequency between December 2010 and January 2011. In response, [the parent] purchased a video surveillance system and installed it in her home in an attempt to record the thefts.

12. On January 31, 2011, the Member was observed on video entering the kitchen, removing something from a purse and concealing it in her pocket. According to [the parent], $780.00 went missing from her purse on that date.

13. The Member’s face is not visible in the January 31, 2011, video. As a result, the Client’s family did not call the police.

14. On February 7, 2011, the Member was again observed on video, entering the kitchen, going through [the parent]’s purse and removing gift cards and a quantity of money from [the parent]’s purse. The Member placed the items in the front pocket of her sweater.

15. Police were called to the Client’s residence and the Member was arrested. The Member was in possession of $650.00 along with three [ ] gift cards worth $125.00 each. The property was returned to [the parent] and the Member was charged with theft.

16. The Member called the Agency and admitted that she had stolen money from a Client. The Member was terminated from the Agency on February 9, 2011.

17. On May 19, 2012, the Member pled guilty to stealing a sum not exceeding $5,000 on January 31, 2011, contrary to section 334(b) of the Criminal Code of Canada. As part of the plea, the Crown attorney withdrew Counts 2 and 3, which alleged theft not exceeding $5,000 on February 7, 2011, and possession of stolen property not exceeding $5,000 on February 7, 2011.

18. The Member was sentenced to 18 months’ probation and a 6-month conditional sentence. She was also ordered to pay $780.00 in restitution to the Client’s family, which she paid.

19. The Member admits to stealing from [the Client’s parent] on January 31 and February 7, 2011.

20. If the Member were to testify, the Member would say she was experiencing some mental health problems, including anxiety and depression, at the time. She would say the theft was out of character for her and that she regrets her actions.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

21. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1 and 2 of the Notice of Hearing, as described in paragraphs 9 to 20 above.

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct and, in particular, finds that the Member committed an act of professional misconduct as alleged in paragraphs 1 and 2 of the Notice of Hearing in that the Member misappropriated property, money and gift cards, from the home of [the Client] The Member’s conduct would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional.

Reasons for Decision

The panel accepted the Agreed Statement of Facts. The Member admits that she committed the thefts as alleged in paragraphs 1 and 2 of the Notice of Hearing, as described in paragraphs 9 to 20 in the Agreed Statement of Facts, and that as such she admits that she engaged in professional misconduct.

The Member was convicted on May 19, 2012 of stealing a sum not exceeding $5000.00 on January 31, 2011, contrary to section 334 (b) of the Criminal Code of Canada.

The panel made the finding that the Member’s conduct was disgraceful, dishonourable and unprofessional for a number of reasons. First, the Member’s conduct is a serious breach of the public’s trust of health care professionals and of those who provide in-home care, in particular. Second, the Member was criminally convicted for her conduct, which again highlights the disgraceful nature of her behaviour. Third, the panel was troubled by the Member’s fundamental dishonesty in engaging in such behaviour and in particular doing so in the home of a very vulnerable client.

Penalty

Counsel for the College advised the panel that a Joint Submission as to Order had been agreed upon. The Joint Submission as to Order provides as follows:

1. Requiring the Member to appear before the Panel to be reprimanded within three (3) months [of the date] that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for four months. This suspension shall take effect from the date this Order becomes final and shall continue to run without interruption.

3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend two sessions with a Nursing Expert (the “Expert”), at her own expense and within six months of the date of this Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation, has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings, and has confirmed he/she will provide a report following the sessions;

ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires and online learning modules:

1. Professional Standards (Revised 2002),

2. Therapeutic Nurse-Client Relationship (Revised 2006);

iv. Before the first meeting, the Member reviews and completes the College’s self-directed learning package, One is One Too Many, at her own expense, including the self-directed Nurses’ Workbook;

v. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms and Nurses’ Workbook;

vi. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into her behaviour;

viii. If the Member does not comply with any of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her certificate of registration;

b) For a period of 24 months from the date the Member’s suspension ends, the Member will notify her employers of this decision. To comply, the Member is required to ensure that:

(i) The Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

(ii) Provide her employer(s) with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Penalty, and

5. a copy of the Panel’s Decision and Reasons, once available;

(iii) Within fourteen (14) days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:

1. that it received a copy of the required documents, and

2. that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and

c) The Member shall not practise as the only registered staff on duty until she successfully completes her two meetings with the Expert.

4. All documents delivered by the Member to the College, the Expert or the employer(s) will be made by verifiable method of delivery, the proof of which the Member will retain.

Penalty Submissions

College Counsel submitted that the penalty ought to be significant due to a breach of public trust and client confidence in nurses. The four-month suspension of the Member’s registration, 24-month monitoring by all employers and remedial terms, condition[s] and limitations afford the Member the opportunity to rehabilitate and re-enter the profession. College Counsel stated that the protection of the public is paramount, as well as rehabilitation of the Member.

Counsel for the Member submitted that the ultimate goal is for the protection of the public. The Member was undergoing some personal difficulties during the time period that the incidents occurred. The Member cooperated with the police and now has a criminal record. Members counsel concurred that the penalty was reasonable.

Penalty Decision

The panel accepts the Joint Submission as to Order and accordingly orders:

1. The Member to appear before the Panel to be reprimanded within three (3) months [of the date] that this Order becomes final.

2. The Executive Director to suspend the Member’s certificate of registration for four months. This suspension shall take effect from the date this Order becomes final and shall continue to run without interruption.

3. The Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend two sessions with a Nursing Expert (the “Expert”), at her own expense and within six months of the date of this Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation, has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings, and has confirmed he/she will provide a report following the sessions;

ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires and online learning modules:

1. Professional Standards (Revised 2002),

2. Therapeutic Nurse-Client Relationship (Revised 2006);

iv. Before the first meeting, the Member reviews and completes the College’s self-directed learning package, One is One Too Many, at her own expense, including the self-directed Nurses’ Workbook;

v. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms and Nurses’ Workbook;

vi. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into her behaviour;

viii. If the Member does not comply with any of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her certificate of registration;

b) For a period of 24 months from the date the Member’s suspension ends, the Member will notify her employers of this decision. To comply, the Member is required to ensure that:

(i) The Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

(ii) Provide her employer(s) with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Penalty, and

5. a copy of the Panel’s Decision and Reasons, once available;

(iii) Within fourteen (14) days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:

1. that it received a copy of the required documents, and

2. that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and

c) The Member shall not practise as the only registered staff on duty until she successfully completes her two meetings with the Expert.

4. All documents delivered by the Member to the College, the Expert or the employer(s) will be made by verifiable method of delivery, the proof of which the Member will retain.

Reasons for Penalty Decision

The panel concluded that the proposed penalty is reasonable and in the public interest. The Member has cooperated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for her actions.

This is the first appearance of this Member before the Discipline Committee and the Member has admitted remorse and has shown a willingness to rehabilitate. A stiff regulatory penalty is necessary in order to [e]nsure public protection as well as offer the opportunity for rehabilitation of the individual Member and [ ] deterrence to all members of the College, that such conduct will not be tolerated by the public.

I, Tammy Hedge, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel as listed below:

Chairperson Date

Panel Members:

Marianne Fletcher, RN

Barbara Titley, RPN

Margaret Tuomi

Linda Bracken