College of Nurses of Ontario v. Kruczek, 2014 ONCNO 90722

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Michael Hogard, RPN Chairperson

Sarah Corkey, RN Member Samantha Diceman, RPN Member Renate Davidson Public Member

Abdul Patel Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) MATTHEW SAMMON for

) College of Nurses of Ontario

• and - )

NICOLE KRUCZEK (formerly ‘GUARRASI’) ) NO REPRESENTATION for

Registration No. JF660712 ) Nicole Kruczek

) LUISA RITACCA

) Independent Legal Counsel

) Heard: October 21, 2014

AMENDED DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on October 21, 2014, at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Nicole Kruczek (the “Member”) as stated in the Notice of Hearing dated June 11, 2014 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(15) of Ontario Regulation 799/93, in that you signed or issued, in your professional capacity, a document that you knew or ought to know contained a false or misleading statement in that you represented on your 2013 Annual Membership Renewal Form that you were not employed in nursing, when in fact you were employed at [the Facility] and/or [the Agency].

2. 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(16) of Ontario Regulation 799/93, in that you inappropriately used a term, title or designation in respect of your practice by:

a. Working and holding yourself out as a nurse on November 8, 2012, at [the Facility], while your certificate of registration was suspended; and/or

b. Working and holding yourself out as a nurse on November 9, 2012, at [the Facility], while your certificate of registration was suspended.

3. 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(19) of Ontario Regulation 799/93, in that you contravened a provision of the Nursing Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts by:

a. Working and holding yourself out as a nurse, and/or engaging in controlled acts, on November 8, 2012, at [the Facility], while your certificate of registration was suspended; and/or

b. Working and holding yourself out as a nurse, and/or engaging in controlled acts, on November 9, 2012, at [the Facility], while your certificate of registration was suspended.

4. 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(21) of Ontario Regulation 799/93, in that you failed to comply with an order of a panel of the Discipline Committee by:

a. Working as a nurse on November 8, 2012, at [the Facility] while your certificate of registration was suspended; and/or

b. Working as a nurse on November 9, 2012, at [the Facility] while your certificate of registration was suspended.

5. 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(23) of Ontario Regulation 799/93, in that you failed to take reasonable steps to ensure that you provided information in a reasonable and complete manner to the College in that you represented on your 2013 Annual Membership Renewal Form that you were not employed in nursing, when in fact you were employed at [the Facility] and/or [the Agency].

6. 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 practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members of disgraceful, dishonourable and/or unprofessional with respect to the following incidents:

a. You breached the order of the Discipline Committee by practising while suspended on November 8, 2012; and/or

b. You breached the order of the Discipline Committee by practising while suspended on November 9, 2012; and/or

c. You misled the Discipline Committee on November 7, 2012, by falsely advising the panel, through your legal counsel, that you were unemployed, when in fact you were employed at [the Facility]; and/or

d. You failed to correct the false statement(s) made by your legal counsel to the Discipline Committee on November 7, 2012, who advised the panel that you were unemployed, when in fact you were employed at [the Facility]; and/or

e. You represented on your 2013 Annual Membership Renewal Form that you were not employed in nursing, when in fact you were employed at [the Facility] and/or [the Agency].

Member’s Plea

The Member admitted the allegations set out in paragraphs 1, 2(a), 2(b), 3(a), 3(b), 4(a), 4(b), 5, 6(a), 6(b), 6(c), 6(d) and 6(e) 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

College Counsel and the Member advised the panel that agreement had been reached on the facts. The parties introduced [ ] an Agreed Statement of Facts, which reads as follows:

THE MEMBER

1. Nicole Kruczek (the “Member”) obtained a diploma in nursing [ ] 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. Her certificate of registration was suspended on November 7, 2012, until March 7, 2013, by Order of the Discipline Committee. On March 7, 2013, the Member was entitled to return to practice with certain restrictions on her certificate of registration, which will expire on March 7, 2015.

3. The Member was employed at [the Facility] from April 1, 2011, to November 20, 2012, when the Member was terminated from [the Facility] as a result of the incident described below.

4. The Member was also employed at [the Agency] between January 4, 2011, and November 1, 2012. The Member had submitted a letter of resignation on September 13, 2012, that was to become effective on November 1, 2012.

PRIOR HISTORY

5. On November 7, 2012, the Member was the subject of a hearing before the College’s Discipline Committee. It proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The Member admitted to stealing from the home of a client and was given an oral reprimand, a four-month suspension and terms, conditions and limitations, which included two meetings with a Nursing Expert and 24 months of employer notification.

THE FACILITY

6. [The Facility] has [four] locations [ ].

7. The Member worked in the In-centre Hemodialysis Unit (the “Unit”) at [two] sites as a part-time nurse.

8. [Unit A] had four hemodialysis units and each unit had nine corresponding chairs that ran three shifts a day, six days a week. [Unit B] had one hemodialysis unit with two corresponding chairs that ran three shifts a day, six days a week. Each run lasted approximately four hours and they were divided into morning, noon and evening runs:

• Morning: 0800 to 1200

• Noon: 1200 to 1630

• Evening: 1700 to 2100

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Practising while Suspended

9. The Member was represented by counsel at the November 7, 2012, Discipline Committee hearing that proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order.

10. At the conclusion of the Member’s hearing on November 7, 2012, she signed a waiver of appeal and the panel issued her an oral reprimand that day. The Member was made aware that her suspension began on November 7, 2012.

11. The Member failed to advise [the Facility] that she had been suspended.

12. Despite the Member’s suspension, she proceeded to work a full shift (1430 to 2230) as a nurse on the Unit the very next day (November 8, 2012). She provided nursing care to a total of seven clients that shift: three clients during the noon run and four clients during the evening run.

13. On November 9, 2012, the Member was scheduled to work the same shift she had worked the day before. She, again, attended at the Unit for her shift despite her suspension.

14. At approximately 1630, [ ] the Member’s supervisor was notified by Human Resources that [the Facility] had received a fax from the College indicating that the Member was suspended by the Discipline Committee.

15. [The supervisor] called the Member, who was working [ ] that day, advised her of the fax [the Facility] received, and told her to leave [the Facility] immediately. The Member was put on leave.

16. During the partial shift that the Member had worked on November 9, 2012, she had provided nursing care to a total of five clients: four clients during the noon run and one client on the evening run.

17. The Member provided the following nursing care to the 12 clients during her shifts of November 8, 2012 and November 9, 2012:

• completing pre-dialysis and access assessments;

• drawing blood;

• administering IV medication (e.g. Aranesp);

• consulting with RNs;

• accessing and de-accessing central venous devices;

• completing physical assessments;

• completing hourly checks;

• charting;

• consulting with physicians (if needed); and

• completing post-dialysis weight and summary sheets.

18. The Member also provided interventions such as toileting and oxygen therapy.

Making False and/or Misleading Statements

19. In August 2012, the Member removed [the Facility] as her business address from the College’s Public Register, despite the fact that she remained employed there until November 20, 2012, when she was terminated. This was a misrepresentation.

20. On the Member’s 2013 Annual Membership Renewal Form, submitted to the College on October 17, 2012, the Member represented that her “current nursing status” was that she “was not employed in nursing and not seeking work in nursing.” This was a misrepresentation. As of October 17, 2012, she was employed as an RPN by two different employers: (1) [the Facility] (until November 20, 2012); and (2) [the Agency] (until November 1, 2012).

21. During the Discipline Committee hearing on November 7, 2012, in the presence of the Member, the Member’s lawyer made the following false statements regarding the Member’s employment at the time:

Ms. Guarrasi is currently unemployed. She had been until very recently working with an agency [ ] which dealt with school nursing. And she also until recently worked with [the Facility], and she worked on a casual basis there.

22. The Member was actively employed at [the Facility] on November 7, 2012, and continued to work there after she was suspended by the Discipline Committee on November 8 and November 9, 2012. The Member failed to take any steps to correct the false statements that her lawyer made at the hearing.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

23. The Member admits that she practised and held herself out as a nurse at [the Facility] while she was suspended by Order of the Discipline Committee. The Member also admits that she falsely represented on her 2013 Annual Membership Renewal Form that she was not employed in nursing when she was, in fact, employed at [the Facility] and [the Agency] as an RPN.

24. The Member admits that she committed the acts of professional misconduct as described in paragraphs 9-23 above and as alleged in the Notice of Hearing at paragraphs:

• 1;

• 2(a), (b);

• 3(a), (b);

• 4(a), (b);

• 5;

• 6(a), (b), (c), (d) and (e) in that the conduct was disgraceful, dishonourable and unprofessional.

Decision

The panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1, 2(a), 2(b), 3(a), 3(b), 4(a), 4(b), and 5 of the Notice of Hearing. As to allegation 6(a), 6(b), 6 (c), 6 (d), and 6 (e), the panel finds that the Member engaged in conduct that would reasonably be considered by members to be disgraceful, dishonourable, and unprofessional.

Reasons for Decision

The panel considered the Agreed Statement of Facts and the Member’s plea and finds that the evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegation #1 in the Notice of Hearing is supported by paragraphs 19 and 20 in the Agreed Statement of Facts.

Allegation #2(a) in the Notice of Hearing is supported by paragraphs 12, 17 and 18 in the Agreed Statement of Facts.

Allegation #2(b) in the Notice of Hearing is supported by paragraphs 13, 16, 17 and 18 in the Agreed Statement of Facts.

Allegation #3(a) in the Notice of Hearing is supported by paragraph 17 in the Agreed Statement of Facts.

Allegation #3(b) in the Notice of Hearing is supported by paragraph 17 in the Agreed Statement of Facts.

Allegation #4(a) in the Notice of Hearing is supported by paragraph 12 in the Agreed Statement of Facts.

Allegation #4(b) in the Notice of Hearing is supported by paragraphs 13 and 16 in the Agreed Statement of Facts.

Allegation #5 in the Notice of Hearing is supported by paragraphs 19 and 20 in the Agreed Statement of Facts.

With respect to Allegation # 6, the panel is satisfied that the Member’s conduct would reasonably be regarded by members of this profession as disgraceful, dishonourable and unprofessional. The Member’s conduct of ignoring an order of the Discipline Committee made November 7, 2012, making a false statement during the course of annual registration renewal, and allowing false statements to be made on her behalf during her prior discipline hearing was certainly unprofessional as it demonstrated a serious and persistent disregard for her professional obligations.

The panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit through, in particular, the act of making false statements during the annual renewal process, and of allowing false statements to be made on her behalf during a discipline proceeding.

Finally, the panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The Member’s persistent disregard for the process of self-regulation casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

Penalty

Counsel for the College and the Member advised the panel that a Joint Submission on Order had been agreed upon. The Joint Submission requests that this panel make an order as follows.

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

2. Directing the Executive Director to immediately revoke the Member’s certificate of registration.

Penalty Submissions

Submissions were made by College Counsel. The Member indicated that she agreed with those submissions.

The College identified the one mitigating factor in this case, which was that ultimately the Member cooperated with the College, in accepting responsibility for her actions, thus avoiding the need for a full hearing.

The key aggravating factor identified here was the obvious disregard for the regulatory process by the Member. She ignored the previous order of the Discipline panel of November 7, 2012, by proceeding to hold herself out as a nurse on November 8, 2012, the day following the Discipline order.

The proposed penalty provides for general deterrence by sending a message to members of the profession that reinforces the seriousness of ignoring a discipline order through revocation of the Member’s certificate of registration.

The proposed penalty provides for specific deterrence through the oral reprimand and revocation of the Member’s certification of registration. The Member’s absolute disregard for self-regulation, made evident when she ignored an order of the Discipline Committee the day after it was provided, makes her ungovernable. In order to maintain public confidence in the process of self-regulation the Member needs to be removed from practice.

Overall, the public is protected because the Member is no longer able to practi[s]e and the proposed penalty will maintain the public’s confidence and trust in the process of self-regulation.

Counsel submitted cases to the panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee.

CNO v. Campbell (Discipline Committee, 2012).

In this case the Member practised and held herself out as a nurse while her certificate of registration was suspended as a result of a previous Discipline Committee order. In this case the Member’s certification of registration was revoked.

CNO v. Hunter (Discipline Committee, 2014).

In this case the Member failed to comply with two separate orders of the Discipline Committee despite multiple opportunities to comply. In this case the Member’s certification of registration was revoked.

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 months of the date that this Order becomes final.

2. The Executive Director is directed to immediately revoke the Member’s certificate of registration.

Reasons for Penalty Decision

The panel understands that the penalty imposed should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

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. The panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. The oral reprimand serves as specific deterrence as it allows the Member to more clearly understand the impact of her actions on public trust in the regulatory process. Should she attempt to return to the practi[c]e of nursing, she will have had the benefit of this panel’s views on the very serious nature of her conduct. The revocation of the Member’s certificate of registration provides for general deterrence as it sends a strong message to the profession about accountability for their actions, and public protection as the Member is no longer able to practi[s]e as a nurse and, in addition, the penalty helps to preserve public trust in the regulatory process.

The penalty is in line with what has been ordered in previous cases.

I, Michael Hogard, 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:

Sarah Corkey, RN

Samantha Diceman, RPN

Renate Davidson, Public Member

Abdul Patel, Public Member