College of Nurses of Ontario v. Lualkwane, 2024 ONCNO 140483

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Tanya Dion, RN Chairperson Lynn Hall, RN Member Morgan Krauter, NP Member Carly Hourigan Public Member Lynda Carpenter Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO (Douglas Montgomery for College of Nurses of Ontario)

• and -

LUAL LUALKWANE Registration No. AH076207 (No Representation for Lual Lualkwane)

Alex Smith Independent Legal Counsel

Heard: November 4, 2024

DECISION AND REASONS

This matter was heard by a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on November 4, 2024 by videoconference.

The Allegations

The allegations against Lual Lualkwane (the “Member”) as stated in the Notice of Hearing dated October 7, 2024 are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(b.0.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, in that, while registered as a Registered Practical Nurse with the College of Nurses, you failed to cooperate with the Quality Assurance Committee or any assessor appointed by that committee, and in particular, you failed to participate after being selected by the Quality Assurance Committee for Quality Assurance assessment and/or failed to complete all Quality Assurance assessment requirements in or around 2022.

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 subsection 1(37) of Ontario Regulation 799/93, in that, while registered as a Registered Practical Nurse with the College of Nurses, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, in that you failed to participate after being selected by the Quality Assurance Committee for Quality Assurance assessment and/or failed to complete all Quality Assurance assessment requirements in or around 2022.

Member’s Plea

The Member admitted the allegations set out in paragraphs #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 admissions voluntary, informed and unequivocal.

Agreed Statement of Facts

College Counsel and the Member advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads, unedited, as follows:

THE MEMBER

1. Lual Lualkwane (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse in the Temporary Class on August 14, 2018 and in the General Class on October 17, 2018.

2. The Member was employed at Home Hospice in Ottawa between 2018 and 2021, and at the Canadian Red Cross – National Office between 2021 and 2023.

3. The Member has no prior CNO disciplinary history.

CNO’S QUALITY ASSURANCE PROGRAM

4. CNO is required by the Health Professions Procedural Code to establish a quality assurance program (the “QA Program”). CNO’s Quality Assurance Committee (“QA Committee”) is responsible for administering CNO’s QA Program.

5. The QA Program helps nurses engage in activities that foster lifelong learning and helps nurses maintain and improve their professional competence. The QA Program includes three kinds of assessment: self-assessment, peer assessment, and practice assessment. Participation in the QA Program is a professional requirement.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

The Member Failed to Participate in the 2022 QA Program

6. The Member was selected to participate in a mandatory QA Assessment by letter dated April 25, 2022. The Member was given until June 6, 2022, in order to complete and submit a 2021 Learning Planning, and to complete the Code of Conduct Practice Activity (the “QA Assessment activities”).

7. The Member did not respond to this initial letter, despite several reminders sent by e-mail. A QA Program Team member also called the Member and left a voice mail on June 8, 2022.

8. The Member did not respond to this initial letter, and did not complete the QA Assessment activities as required.

9. By letter dated July 25, 2022, the QA Committee provided a second opportunity to complete the QA Assessment activities by August 16, 2022. The QA Program Team provided several additional reminders by e-mail.

10. In an e-mail dated August 15, 2022, the Member wrote to the QA Program Team stating that his “schedule is very tight now, and [he] work[s] nights”. The Member requested additional time to complete the QA Assessment activities. The QA Program Team granted the Member an extension to August 29, 2022. Despite the extension, the Member still did not complete the QA Assessment activities.

11. By letter dated October 3, 2022, the QA Committee provided a third and final opportunity to complete QA Assessment activities by November 1, 2022. A QA Program Team member called the Member on October 26, 2022, and left a voicemail to notify him that the QA Assessment activities were due on November 1, 2022. The Member’s primary number provided to CNO was no longer in service, but a message was left at his alternate number.

12. Each letter from the QA Committee included a warning that failure to complete the QA Assessment activities could result in a referral to the Inquires Complaints and Reports Committee (“ICRC”) and/or a direction to the Executive Director to impose terms, conditions or limitations on the Member’s certificate. The final letter, dated October 3, 2022, also included a notice of intention to refer to ICRC in the event of non-completion of the QA Assessment activities.

13. On November 2, 2022, the Member sent a further e-mail to the QA Program Team stating that he had been unable to complete the QA Assessment activities because his work took him from city to city. He indicated that he was “working on it and almost done.”

14. The Member ultimately did not submit his QA Assessment activities. He did not complete the QA Assessment as required.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

15. The Member admits that he committed the act of professional misconduct as alleged in paragraph 1 of the Notice of Hearing in that he failed to cooperate with the QA Committee or any assessor appointed by that committee, and he failed to complete all QA assessment requirements in 2022, as described in paragraphs 4 - 14 above.

16. The Member admits that he committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing, and in particular, that his conduct was dishonourable and unprofessional, as described in paragraphs 4 - 14 above.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities based upon clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs #1 and #2 of the Notice of Hearing. As to allegation #2, the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonourable and unprofessional.

Reasons for Decision

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

Allegation #1 in the Notice of Hearing is supported by paragraphs 4 - 15 in the Agreed Statement of Facts. The Member was informed that he had been selected to participate in a mandatory Quality Assurance (“QA”) Assessment in a letter dated April 25, 2022. He was provided until June 6, 2022 to complete and submit several QA activities. Despite the Quality Assurance Committee (“QA Committee”) granting the Member’s request for an extension of time to complete the QA Assessment activities, the Member still failed to complete the QA Assessment Activities. The Member admitted that he committed the acts of professional misconduct as alleged by failing to cooperate on multiple occasions with the QA Committee and participate in the Quality Assurance Program (“QA Program”) by submitting a learning plan and completing practice assessment activities required by the QA Committee.

Allegation #2 in the Notice of Hearing is supported by paragraphs 4 – 14 and 16 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in failing to participate in the QA Program was relevant to the practice of nursing and was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations.

The Panel also finds that the Member’s conduct was dishonourable as the Member knew or ought to have known that his conduct was unacceptable and fell below the standards of the profession. It included an element of moral failing by not participating in the Quality Assurance Program when the requirement that he do so was clearly communicated to him on multiple occasions by the College.

Penalty

College Counsel and the Member advised that a Joint Submission on Order had been agreed upon and requested that the Panel make the following order:

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

2. Directing the Executive Director to suspend the Member’s certificate of registration for 2 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.

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 2 meetings with a Regulatory Expert (the “Expert”), at the Member’s own expense and within 6 months from the date that this Order becomes final. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by CNO in advance of the meetings;

ii. At least 5 days before the first meeting, or within another timeframe approved by the Expert, 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 CNO publications and completes the associated Practice Reflection Worksheets, online learning modules and decision tools (where applicable):

1. Code of Conduct

iv. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the completed Practice Reflection Worksheets;

v. 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 patients, 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;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, 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 the Member’s behaviour;

vii. If the Member does not comply with any one or more 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 the Member’s certificate of registration;

b) The Member shall successfully complete all Quality Assurance Program requirements by the dates and deadlines that will be communicated to the Member by the Quality Assurance Committee.

4. All documents delivered by the Member to CNO or the Expert, will be delivered by verifiable method, the proof of which the Member will retain.

College Submissions on Penalty

College Counsel made submissions which included the following.

The aggravating factors in this case were:

• The length of time of the Member’s misconduct, that involved ignoring or providing responses with out completing the required assessments, after repeated correspondence from the College;

• The Member received numerous communications via email and phone messages from the College and was offered multiple opportunities to comply with his obligations but failed to do so.

The mitigating factors in this case were:

• The Member has cooperated with the College in this proceeding by entering into an Agreed statement of Facts and Joint Submission on Order;

• The Member has no prior disciplinary history with the College.

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

CNO v. Davis (Discipline Committee, 2020): In this case, which proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order, the member failed to participate in the Quality Assurance Program. The member received written notification by mail informing her she had an obligation to participate in the Quality Assurance Program. The penalty included an oral reprimand, a two month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert, and an order to participate in the next available Quality Assurance program cycle.

CNO v. Rubinas (Discipline Committee, 2020): In this case, which proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order, the member failed to participate in the Quality Assurance Program. The member received written notification by mail and voicemail informing her she had an obligation to participate in the Quality Assurance Program. The penalty included an oral reprimand, a two month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert, and an order to participate in the next available Quality Assurance program cycle.

Member’s Submissions on Penalty

The Member indicated that he agreed with the College’s submissions.

Penalty Decision

The Panel accepted the Joint Submission on Order and made the order requested.

Reasons for Penalty Decision

There is a high threshold for departing from a Joint Submission on Order established by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43. Departing from a joint submission would require a finding that the proposed penalty would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

The Panel concluded that the proposed penalty is not contrary to the public interest and does not bring the administration of justice into disrepute.

The Panel concluded that the proposed penalty is reasonable and in the public interest. It promotes public confidence in the ability of the College to regulate nurses.

The Panel finds that the proposed penalty satisfies the penalty goals of specific and general deterrence, rehabilitation and remediation, and public protection.

Specific deterrence is met through the oral reprimand and the two month suspension of the Member’s certificate of registration.

General deterrence is met through the oral reprimand and the two month suspension of the Member’s certificate of registration, allowing members of the profession to see that the College takes such conduct very seriously and members are required to comply with the requirements of the QA program.

Rehabilitation and remediation are met through the two meetings with a Regulatory Expert, which will assist the Member to understand and comply with his professional obligations for continuing competence moving forward.

Public protection is met when nurses are committed to continuing competence and when they comply with their professional accountabilities for quality assurance.

The Panel acknowledges that the Member has co-operated with the College and by, agreeing to the facts and a proposed penalty, has accepted responsibility, which is a mitigating factor.

The penalty is also in line with what has been ordered in previous cases in similar circumstances as demonstrated by the cases submitted and referred to by College Counsel.

I, Tanya Dion, RN sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.