College of Nurses of Ontario v. Mast, 2014 CanLII 98904

Discipline Committee of the College of Nurses of Ontario

This decision was followed by an appeal, the results of which can be found at the end of this document.

PANEL: Susan Roger, RN Chairperson Lindsay Hyslop, NP Member Laura Sanderson, RPN Member Mary MacMillan-Gilkinson Public Member Abdul Patel Public Member

BETWEEN:

College of Nurses of Ontario (Emily Lawrence for College of Nurses of Ontario)

• and -

Sonja W. Mast Registration No. 8903957 (Martha Cook for Sonja Mast)

Luisa Ritacca, Independent Legal Counsel

Heard: August 26, 2014

AMENDED DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on August 26, 2014, at the College of Nurses of Ontario ("the College") at Toronto.

Publication Ban

Counsel for the Member requested a Publication Ban regarding certain exhibits entered which included confidential information related to the Member's business agreement with the Ministry of Health and Long Term Care, as well as her home address. Counsel for the College did not oppose this request. The Panel ordered a publication ban for exhibits 4, 5, and 6.

The Allegations

The allegations against Sonja W. Mast (the "Member") as stated in the Notice of Hearing dated July 25, 2014, are as follows.

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 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 practice assessment in or about March-June 2012.

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(1) of Ontario Regulation 799/93, in that you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession with respect to the following incidents:

(a) you failed to participate after being selected by the Quality Assurance Committee for practice assessment in or about March-June 2012; and

(b) you performed controlled acts for which you were not authorized and in particular, you prescribed testosterone, a controlled substance, to [Client A] on or about September 1, 2011;

(c) you failed to conduct an appropriate clinical assessment of [Client A] before prescribing testosterone to him and/or failed to document your assessment of [Client A] on or about September 1, 2011;

(d) you failed to document that you had prescribed testosterone to [Client A] on or about September 1, 2011; and/or

(e) you failed to document your assessment, care and treatment of [Client B] on or about September 1, 2011.

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 subsection 1(14) of Ontario Regulation 799/93, in that you failed to keep records as required, with respect to the following:

(a) you failed to document your clinical assessment of [Client A] before prescribing testosterone to him on or about September 1, 2011;

(b) you failed to document that you had prescribed testosterone to [Client A] on or about September 1, 2011; and/or

(c) you failed to document your assessment, care and treatment of [Client B] on or about September 1, 2011.

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 subsection 1(19) of Ontario Regulation 799/93, in that you contravened a provision of the Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts, and in particular, section 27(1) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18; section 5.1 of the Nursing Act, 1991, S.O. 1991, c. 32; and/or sections 16(2) and/or 16(4) of Ontario Regulation 275/94 under the Nursing Act, 1991, in that you performed controlled acts for which you were not authorized and in particular, you prescribed testosterone, a controlled substance, to [Client A] on or about September 1, 2011.

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 subsection 1(37) of Ontario Regulation 799/93, in that 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 of the profession as disgraceful, dishonourable or unprofessional with respect to the following incidents:

(a) you failed to participate after being selected by the Quality Assurance Committee for practice assessment in or about March-June 2012; and

(b) you performed controlled acts for which you were not authorized and in particular, you prescribed testosterone, a controlled substance, to [Client A] on or about September 1, 2011;

(c) you failed to conduct an appropriate clinical assessment of [Client A] before prescribing testosterone to him and/or failed to document your assessment of [Client A] on or about September 1, 2011;

(d) you failed to document that you had prescribed testosterone to [Client A] on or about September 1, 2011; and/or

(e) you failed to document your assessment, care and treatment of [Client B] on or about September 1, 2011.

Member's Plea

The Member admitted the allegations set out in paragraphs numbered 1; 2 a, b, c, d, e; 3 a, b, c; 4; 5 a, b, c, d, e ("unprofessional" only) 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 [ ]

THE MEMBER

1. Sonja W. Mast (the "Member") obtained a diploma in nursing [ ] in 1988.

2. The Member initially registered with the College of Nurses of Ontario (the "College") as a Registered Nurse ("RN") on January 1, 1989. On October 27, 1998, the Member registered as a nurse in the Extended Class (Nurse Practitioner).

3. The Member practises as a self-employed Nurse Practitioner ("NP") at [the clinic], which is funded by the Ministry of Health and Long-Term Care (the "Ministry") by virtue of a services agreement made between the Member and the Ministry. The Agreement provides that if the Member is unable to provide nursing services in accordance with the agreement for a period of 60 days or more, the Minister may terminate the agreement on 30 days' notice to the Member.

4. The Clinic is located [in] Ontario. To the best of the Member's knowledge and belief, the Clinic is [ ] one of the last independent NP clinic[s] directly funded by the Ministry in the province of Ontario.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Quality Assurance

5. In April 2010, the Member was randomly selected to participate in a practice assessment as part of the College's Quality Assurance ("QA") Program. The Member was notified that she had been selected to participate in a letter dated April 9, 2010. The Member was given until May 7, 2010, to confirm her participation by regular mail.

6. The Member asked the QA Committee for a deferral of her participation in the 2010 QA program. She notified the College that she was experiencing a marital breakdown and supported her request with a letter from the Member's counsellor which attested to the personal challenges faced by the Member at the time. The deferral was granted. In a letter dated September 27, 2010, the Member was notified that the Committee approved her deferral request. The letter explained that she would be required to complete the QA Program in 2011.

7. On March 25, 2011, the Member was notified that she had once again been selected to participate in the practice assessment. She was given until April 19, 2011, to confirm her participation by logging in to the online QA program. The Member was given until May 10, 2011, to complete a learning plan and objective tests. She failed to do so.

8. In a letter dated July 22, 2011, the QA Committee required the Member to submit a learning plan and case example from her practice, and to speak to a practice consultant because she had failed to complete the learning plan and objective tests by May 10, 2011. As well, she was informed that she would be required to participate in the 2012 practice assessment. The Member was given a deadline of September 2, 2011, to complete a learning plan and case example, and to speak to a practice consultant in order to avoid having her conduct reported to the College's Inquiries, Complaints and Reports Committee ("ICRC") as an act of professional misconduct. She submitted an acceptable learning plan and case example and spoke to a practice consultant. On September 19, 2011, the College notified the Member in writing that she had "completed the QA requirements for 2011". In that correspondence, the Member was reminded that she would be required to participate in the 2012 practice assessment process.

9. On March 26, 2012, the QA Committee sent the Member a letter requiring her to complete the 2012 practice assessment by May 14, 2012. In April 2012, she received a reminder and notification that the QA Committee would refer the matter to the ICRC if she did not comply, which she did not.

10. On June 19, 2012, the Member was informed that her failure to complete the QA program had been reported to the ICRC.

Prescribing a Controlled Substance

11. As an NP, the Member was legally permitted to prescribe certain drugs in accordance with s. 27 of the Regulated Health Professions Act, s. 5.1(1) of the Nursing Act and Ontario Regulation 275/94. However, pursuant to ss. 13.2, 16(2) and (4) of Ontario Regulation 275/94, all members are prohibited from prescribing a controlled substance within the meaning of the Controlled Drugs and Substances Act.

12. Testosterone is a controlled substance as defined in the Controlled Drugs and Substances Act. The Member is not authorized to prescribe Testosterone.

13. [Client A] was both [Dr. A's] and the Member's client. [Dr. A] worked in the same building as the Member at [the clinic].

14. At the time of the incidents, [Client A] was 70 years old. Starting in 2010, he presented with dementia, lethargy and depression. He relied on his wife, [Client B], to manage his medical needs. [Client B] was also the Member's client.

15. In April 2011, the Member conducted a broad assessment of [Client A], including blood work.

16. [Dr. A] first prescribed testosterone gel (Testim 1%) to [Client A] in August 2011.

17. On September 1, 2011, the Member had an appointment with [Client B]. [Client A] did not attend the appointment. During [Client B's] appointment, the Member wrote a prescription for Testim 1% with six repeats for [Client A] and provided it to [Client B].

18. The Member did not conduct an assessment of [Client A] on September 1, 2011 before prescribing the Testim 1%.

19. When the Member prescribed the testosterone, she did not know that testosterone was a controlled substance or that it was outside her scope of practice to prescribe it. The Member admits that she ought to have known that she was not authorized to prescribe this medication. In October 2012, the Member became aware that she was not authorized to prescribe testosterone. She then notified the dispensing pharmacy and [Dr. A] about her inability to prescribe testosterone. If the Member were to testify, she would state that she has been assiduously careful about prescribing medication since the incident.

20. The Member admits that prescribing testosterone was a breach of the standards of practice.

Failure to Document Treatment and Assessment of [Client A]

21. The Member failed to document the prescription in [Client A's] chart and failed to assess [Client A] on September 1, 2011 prior to prescribing testosterone as she was required to do. In fact, there was no mention of the prescription at all in [Client A's] chart or anywhere else. The Member admits that [ ] this failure was a breach of the standards of practice. The Member further admits that her documentation in respect of [Client A] was inadequate.

Failure to Document Treatment and Assessment of [Client B]

22. Despite having a scheduled appointment with [Client B] on September 1, 2011, the Member did not document that she had met with, assessed or treated [Client B] on that day.

23. The Member admits that her failure to document her care, assessment and treatment of [Client B] on September 1, 2011 was inadequate and constitutes a breach of the standards of practice.

24. The Member often communicated with [Client A] and [Client B] through email and several of those emails were not printed and filed in the client's chart as a result of a change in her administrative staff. The Member admits that she had an obligation to supervise her staff and to ensure that she kept complete and accurate records.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

25. The Member admits that she committed acts of professional misconduct as described above in paragraphs 5 to 24, and as alleged in the Notice of Hearing in the following paragraphs:

• 1 – the Member admits that she failed to cooperate with the QA Committee by failing to complete the practice assessment between March and June 2012;

• 2(a), (b), (c), (d) and (e) – the Member admits that she contravened a standard of practice of the profession when she: failed to complete the QA practice assessment; performed controlled acts she was not authorized to do; failed to assess [Client A] before prescribing testosterone on September 1, 2011; failed to document that she had prescribed testosterone to [Client A] on September 1, 2011; and failed to document her assessment, care and treatment of [Client B] on September 1, 2011.

• 3(a), (b) and (c) – the Member admits that she failed to keep records as required when she failed to document her clinical assessment of [Client A] before prescribing testosterone to him; failed to document that she prescribed testosterone to [Client A] on September 1, 2011; and failed to document her assessment, care and treatment of [Client B] on September 1, 2011 following her appointment.

• 4 – the Member admits that she performed controlled acts she was not authorized to do when she prescribed testosterone to [Client A] on September 1, 2011

• 5(a), (b), (c), (d) and (e) – the Member admits that her conduct was unprofessional with respect to all of the conduct described above when taken together.

The parties filed no further evidence on the issue of the Member's liability. Both the College and the Member argued that the facts as set out in the Agreed Statements of Facts and the Member's admissions therein provide the Panel with a sufficient basis to make findings of misconduct as have been acknowledged.

Decision

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

The Panel finds that the Agreed Statement of Facts clearly supports findings of professional misconduct as alleged and admitted.

In addition to the findings set out in allegations 1 through 4, the Panel finds that having regard to all of the circumstances, [ ] members of the profession would regard this conduct taken as a whole as unprofessional.

Reasons for Decision

The Panel considered the agreed statement of fact and found that in particular allegation 1 is supported by paragraphs 9 and 10; 2(a) by paragraphs 9 and 10; (b) by paragraphs 17 and 20; (c) paragraphs 17, 18 and 20; (d) paragraph 21; (e) paragraphs 22, 23, and 24; 3(a) paragraph 21; (b) paragraph 21; (c) paragraphs 22, 23, and 24; 4 paragraphs 17, 18, and 21; 5(a) paragraphs 9 and 10; (b) paragraphs 17 and 20; (c) paragraph 18; (d) paragraph 21; (e) paragraphs 22, 23, and 24 in the Agreed Statement of Facts.

The Panel considered how members of the profession, having regard to all of the circumstances, would reasonably regard this behaviour. The Panel viewed the Member's conduct as a whole and while it is acknowledged that simple errors in [judgment] may occur, consideration of all allegations taken together demonstrates a lack of regard for her professional obligations as a Nurse Practitioner. This behaviour would be reasonably regarded by members of the profession as unprofessional.

The Panel considered all of the allegations taken together when considering its findings for allegation #5 and after careful deliberation found that all of these behaviours taken as a whole would reasonably be regarded by members of the profession as unprofessional.

Penalty

Penalty Submissions

Counsel for the College proposed the following Order:

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 suspend the Member's certificate of registration [for] five 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 the practising 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 two meetings 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 and has been approved by the Director of Professional Conduct (the "Director") in advance of the meetings;

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, and

4. if available, a copy of the Panel's Decision and Reasons;

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

1. Professional Standards,

2. Nurse Practitioner, and

3. RHPA Scope of Controlled Acts Model;

iv. at least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires and online participation forms;

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 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;

vi. within 30 days after the Member has completed the last session, the Member will confirm that the [expert] forwards 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;

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 her certificate of registration;

b. for a period of 12 months from the date the Member's suspension ends, the Member will notify the Primary Health Care Branch ("PHCB") of the Ministry of Health and Long-Term Care ("MOHLTC") and "Collaborating Physician(s) (or equivalent) ("Collaborating Physician(s)" is one or more physicians who enter into an agreement with the Member to provide ongoing professional support to the Member) and/or her employer(s) of the decision. To comply, the Member is required to:

i. ensure that 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 the PHCB and Collaborating Physician(s) (or equivalent) and/or her employer(s) with a copy of:

1. the Panel's Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts, and

4. a copy of the Panel's Decision and Reasons, once available;

iii. ensure that within 14 days of the commencement or resumption of the Member's employment in any nursing position, the PHCB and Collaborating Physician(s) (or equivalent) and/or employer(s) forward(s) a report to the Director, in which it will confirm:

1. That they 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. within five months of the date of this Order, and for a period of 12 months thereafter, the Member will enter into a mentoring relationship with [a "Mentor", who is] a Collaborating Physician or another member of the College of Physicians and Surgeons who is approved by the Director [ ], at her own expense. To comply:

i. the Member will ensure that the Director is notified of the name, address and telephone number of the Mentor, within 14 days of commencing the mentoring relationship;

ii. the Member will provide the Mentor with the documents listed in paragraph 3(b)(ii) within 14 days of commencing the mentoring relationship or within 14 days after the release of such documents, whichever is earliest;

iii. the Member will ensure that within 21 days of commencing the mentoring relationship, the Mentor forwards a report to the Director, in which he or she will confirm:

1. That they received a copy of the required documents,

2. And 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;

iv. the Mentor will conduct a chart audit of ten randomly selected clients within 30 days of the date the Member's suspension ends and provide recommendations to the Member to remedy deficiencies in her practice, and provide an initial report to the Director in respect of the Member's practice forthwith;

v. thereafter, the Mentor will conduct a chart audit of ten randomly selected clients and will provide a report to the Director in respect of the Member's practice every three months for 12 months;

vi. the Mentor will raise any concerns he or she develops about the Member's practice with the Director; and

vii. the Member will abide by any and all recommendations of the Mentor [with] respect to her practice.

d. The Member shall participate in the College's 2015 Quality Assurance program (or the next available cycle), including the practice assessment component and a clinical assessment, within 24 months from the date the Member's suspension ends.

4. All documents delivered by the Member to the College, the Expert, the PHCB, Collaborating Physicians(s) (or equivalent), Mentor or the employer(s) shall be delivered by verifiable method, the proof of which the Member will retain.

Counsel for the College submitted that the Panel should consider four main objectives of penalty: specific deterrence, general deterrence, public protection, and rehabilitation. The College submitted that a reprimand would provide for both general and specific deterrence to the member as well as providing an opportunity for the member to reflect upon her actions. A suspension of the Member's certificate of registration for a period of five (5) months again would provide both general and specific deterrence. The length of suspension will convey to the Member, the profession, and to the public the seriousness of this behaviour and that such behaviour will not be tolerated. Counsel also submitted that while the funding agreement between the Member and the Primary Health Care Branch of the Ministry of Health and Long-Term Care includes a termination clause, should the Member cease practi[s]ing for a defined period of time, the Panel should not consider this to be a mitigating factor when making its decision. Counsel further submitted that participating in meetings with an expert will allow the Member to engage appropriately in reflective practice and to allow the College to receive feedback regarding the Member's understanding and meets the goal of rehabilitating the Member. Finally Counsel for the College submitted that the terms, conditions, and limitations placed upon the Member would ensure public protection while the period of ongoing monitoring would ensure compliance with the standards of practice of the profession.

While the Member agreed to certain aspects of the order proposed by the College, she submitted the following as more appropriate:

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 impose the following terms, conditions, and limitations on the Member's certificate of registration:

a. The Member will attend two meetings 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 and has been approved by the Director of Professional Conduct (the "Director") in advance of the meetings;

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, and

4. if available, a copy of the Panel's Decision and Reasons;

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

1. Professional Standards,

2. Nurse Practitioner, and

3. RHPA Scope of Controlled Acts Model;

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

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 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;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the [expert] forwards 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,

b. For a period of 12 months from the date of this Order, the Member will notify her "Collaborating Physician(s) ("Collaborating Physician(s)" [ ] is one or more physicians who enter into an agreement with the Member to provide ongoing professional support to the Member) and/or her employer(s) of the decision. To comply, the Member is required to:

i. Ensure that 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 the Collaborating Physician(s) and/or her employer(s) with a copy of:

1. The Panel's Order,

2. The Notice of Hearing,

3. The Agreed Statement of Facts, and

4. A copy of the Panel's Decision and Reasons, once available;

iii. Ensure that within 14 days of the commencement or resumption of the Member's employment in any nursing position, the Collaborating Physician(s) and/or employer(s) forward(s) a report to the Director, in which it will confirm:

1. That they 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. Within five months of the date of this Order, and for a period of 12 months thereafter, the Member will enter into a mentoring relationship with a Collaborating Physician or another member of the College of Physicians and Surgeons who is approved by the Director (the "Mentor"), at her own expense. To comply:

i. The Member will ensure that the Director is notified of the name, address and telephone number of the Mentor, within 14 days of commencing the mentoring relationship;

ii. The Member will provide the Mentor with the documents listed in paragraph 2(b)(ii) within 14 days of commencing the mentoring relationship or within 14 days after the release of such documents, whichever is earliest;

iii. The Member will ensure that within 21 days of commencing the mentoring relationship, the Mentor forwards a report to the Director, in which he or she will confirm:

1. That they received a copy of the required documents,

2. And 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.

3. All documents delivered by the Member to the College, the Expert, Collaborating Physicians(s), Mentor or the employer(s) shall be delivered by verifiable method, the proof of which the Member will retain.

Counsel for the Member further submitted that any Order should follow the general principles of specific and general deterrence, remediation, and protection of the public interest. Counsel outlined relevant factors that the Panel should also consider. First counsel argued that the Panel should consider progressive discipline and that the absence of a past record with the College should be considered a mitigating factor. The Panel should also consider the presence of remorse in these circumstances, and note in particular that the Member cooperated with the College during the investigation and admitted her misconduct, thereby eliminating the necessity of a lengthy hearing. It was further stated that although the Member has had a lengthy record of failure to comply with the Quality Assurance process, she has taken steps to develop strategies to adapt to stressors, which will help her respond to the Quality Assurance process in a more timely manner. Counsel for the Member also identified that the misconduct mostly occurred during one day. Finally, it was submitted that this behaviour was out of character for the Member and it would likely not be repeated.

Counsel for the Member also submitted that it is outside of this Panel's jurisdiction to order participation in the Quality Assurance Program and that [it] is the exclusive authority of the Quality Assurance Committee to require members to participate in its programs. In response, Counsel for the College submitted that it does not make sense that a failure to participate in a Quality Assurance program amounts to professional misconduct, as defined in the Code, but that this Committee could not then require participation as a term of [the] order. The Panel sought the advice of Independent Legal Counsel ("ILC") with regard to this issue. ILC advised that the Panel does have the authority to make an order directing a Member to participate in the Quality Assurance Program. ILC advised that the proposed term of [the] Order in question was rationally connected to the professional misconduct that has been admitted by the Member. The proposed term does not usurp the role of the Quality Assurance Committee in administering its programs. The proposed term only seeks to ensure that the Member participate in the Quality Assurance process as necessary. Finally, ILC advised that while [ ] s. 26(3) of the Code specifically prohibits the Inquiries Complaints and Reports Committee ("ICRC") from referring a matter to the Quality Assurance Committee, no such explicit prohibition exists as it relates to the Discipline Committee. Following the receipt of ILC's advice, the Panel received and considered further written submissions from the parties.

Counsel for the Member submitted that the Panel does not have the authority to order participation in the Quality Assurance process. It was further submitted that quality improvement activities of the College be distinct and separate from the discipline process. Counsel submitted that the broad discretion of the Discipline Committee under section 51(2)(3) of the Code permitting the Panel to direct terms, conditions, and limitations does not include the authority to order participation in the Quality Assurance process. It was further submitted that only the Quality Assurance Committee has the authority to deal with the Quality Assurance program. Counsel submitted that it would be a duplication of powers of the Quality Assurance Committee as that Committee has the authority to order terms, conditions, or limitations upon a member's practice.

Counsel for the College submitted that the College agrees with the ILC advice in that the Quality Assurance program is distinct and separate from the discipline process, and identified that the discipline process is not engaged when a member is not successful in satisfying the requirements of the Quality Assurance program. The discipline process is engaged, however, when the member fails to cooperate with the Quality Assurance process. It was further submitted that failure to participate in the Quality Assurance program is an issue of governability, not that of quality assurance. It was also submitted that the Quality Assurance Committee only has the authority to place terms, conditions, or limitations on a member's practice where a member has not successfully complied [with] the Quality Assurance process and these orders are to ensure deficits in practice are addressed. Counsel for the College reiterated that this Panel has the authority to order the participation in the Quality Assurance program.

The Panel considered reply submissions from both parties and accepts the advice of ILC. The Panel finds that it would not be consistent with the legislative framework to consider it an act of professional misconduct to fail to participate in the Quality Assurance process without having the ability to enforce participation.

Penalty Decision

The panel makes the following order as to penalty:

1. The Member is required 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 suspend the Member's certificate of registration for three 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 the practising class.

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

a) The Member will attend two meetings 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 and has been approved by the Director of Professional Conduct (the "Director") in advance of the meetings;

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, and

4. 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,

2. Nurse Practitioner, and

3. RHPA Scope of Controlled Acts Model;

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

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 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;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards 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, and

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

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 her certificate of registration;

b) For a period of 12 months from the date the Member's suspension ends, the Member will notify the "Collaborating Physician(s)" and/or her employer(s) of the decision. A "Collaborating Physician(s)" is one or more physicians who enter into an agreement with the Member to provide ongoing professional support to the Member. To comply, the Member is required to:

i. Ensure that 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 the Collaborating Physician(s) and/or her employer(s) with a copy of:

1. the Panel's Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts, and

4. a copy of the Panel's Decision and Reasons, once available;

iii. Ensure that within 14 days of the commencement or resumption of the Member's employment in any nursing position, the Collaborating Physician(s) and/or employer(s) forward(s) a report to the Director, in which it will confirm:

1. that they 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) Within three months of the date of this Order, and for a period of 12 months thereafter, the Member will enter into a mentoring relationship with a Collaborating Physician or a member of the College of Nurses of Ontario who is approved by the Director (the "Mentor"), at her expense. To comply,

i. The Member will ensure that the Director is notified of the name, address, and telephone number of the Mentor, within 14 days of commencing the mentoring relationship;

ii. The Member will provide the Mentor with the documents listed in paragraph 3(b)(ii) within 14 days of commencing the mentoring relationship or within 14 days after the release of such documents, whichever is earliest;

iii. The Member will ensure that within 21 days of commencing the mentoring relationship, the Mentor forwards a report to the Director, in which he or she will confirm:

1. that they 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;

iv. The Mentor will conduct a chart audit, within 30 days of the date the Member's suspension ends. The audit will be comprised of ten (10) randomly selected clients, specifically reviewing prescribing practices and documentation standards. The Mentor will provide recommendations to the Member, and provide an initial report to the Director in respect of the Member's practice forthwith;

v. Thereafter, the Mentor will conduct a chart audit of ten (10) randomly selected clients, specifically reviewing prescribing practices and documentation standards, and will provide a report to the Director in respect of the Member's practice every three months for a period of 12 months;

d) The Member shall participate in the College's 2015 Quality Assurance program (or the next available cycle), including the practice assessment component and a clinical assessment, by December 31, 2016.

Reasons for Penalty Decision

The Panel considered the primary purposes of an order including general and specific deterrence, rehabilitation and remediation, as well as the protection of the public. The Panel first considered elements of the submissions where both parties were in agreement. First the Panel accepts that an oral reprimand is appropriate in this case. It serves the purposes of general and specific deterrence as well as outlining to the Member the seriousness of her misconduct. The Panel also considered if a suspension of the Member's certificate of registration is warranted in this case, and if so, for what duration. The Panel finds that a suspension of three months will demonstrate to the Member as well as the profession as a whole that this type of conduct will not be tolerated, however, the panel accepts that there were mitigating factors. The Panel noted that the Member showed remorse for her behaviour and felt that a suspension of five months would be excessive. The Panel considered submissions from the Member's Counsel that no suspension is warranted in this case; however, the Panel believes that a period of suspension of three months strikes a balance. With regard to the terms and conditions set out in the parties' submissions, the Panel decided that notification to the PHCB is unnecessary and does not reflect the spirit of penalty orders. Ensuring that the Member has adequate supervision and support upon her return to practice can be [facilitated] directly through a mentoring agreement or employer. The public would be better served by ensuring that this occurs through an individual who is familiar with the Member's practice. Furthermore, the Panel considered whether it would be appropriate for the mentorship role to be undertaken by a physician. The Panel concluded that it would be appropriate for the Member's Collaborating Physician(s) to act as a mentor, however the Panel concluded that if the Member's Collaborating Physician(s) were unwilling or unable to fulfill this role, it would be more appropriate for the [mentor-function] to be supported by a member of this College. The Panel believes that while there may be areas of overlap between a physician and nurse's scope of practice, both the Member and the public would be better served by having a mentor who is familiar with nursing standards. Finally, the Panel believes that the chart audits will allow the Member to effectively reflect upon her practice with the support of a mentor and she will be able to integrate her learning from working with the expert in her day-to-day practice.

I, Susan Roger, 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 as listed below:

Chairperson Date

Panel Members:

Lindsay Hyslop, NP Laura Sanderson, RPN Mary MacMillan-Gilkinson, Public Member Abdul Patel, Public Member

Appeal

The Member appealed to the Ontario Superior Court of Justice, Divisional Court, raising concerns about various terms of the Panel's penalty order. The Divisional Court released its decision dismissing the Member's appeal on September 24, 2015.

The Member argued that a two-month delay between the Panel issuing the penalty order and releasing the Panel's written decision and reasons was procedurally unfair. The Court did not agree. It noted that the Panel was required by statute to provide written reasons and that the two-month delay did not, on its own, provide a basis for concerns about fairness.

The Member also disputed the Panel's order requiring her to participate in the Quality Assurance Program, arguing that only the Quality Assurance Committee could make such an order. The Court noted that the legislative scheme makes clear that practice assessment is an important regulatory tool to assess the quality of practice of members, and failing to participate is considered professional misconduct. It would be inconsistent with the legislative framework if the Discipline Committee could not remedy the misconduct by requiring the Member to participate.

Finally, the Member argued that the penalty order was disproportionately harsh. The three-month suspension was excessive and the requirement for the collaborating physician and mentor to report to the College did not support the Member's rehabilitation. The Court rejected the Member's argument. A professional discipline panel is uniquely qualified to appreciate the severity of the misconduct and make an appropriate order. The Court referenced a previous decision noting that "nurse practitioners have the most responsibility and autonomy and the least amount of supervision." Given that the Panel's primary concern is public protection, the reports are legitimately needed to ensure the College is notified if there are problems with the Member's practice.