The College of Audiologists and Speech-Language Pathologists of Ontario v. Sandra Nurse, 2009 ONCASPD 2

DISCIPLINE COMMITTEE

OF THE COLLEGE OF AUDIOLOGISTS AND

SPEECH-LANGUAGE PATHOLOGISTS OF ONTARIO

Date: August 31, 2009

BETWEEN:

THE COLLEGE OF AUDIOLOGISTS AND SPEECH-LANGUAGE

PATHOLOGISTS OF ONTARIO

("College")

and -

SANDRA NURSE ("Ms. Nurse")

Panel Members:

Counsel Present:

Meg Petkoff

Rosanne Lavallée-McNamee John Oleg Krawchenko

Ferne Dezenhouse

Bernard C. LeBlanc

Lad Kucis

Alan Bromstein

Chair, Professional Member Professional Member

Public Member Public Member

Counsel for the College

Counsel for Ms. Nurse

Independent Legal Counsel to Panel

Hearing Date: May 28, 2009

REVISED

DECISION AND REASONS FOR THE DECISION

of the Panel of the Discipline Committee

This matter came before a panel of the Discipline Committee ("Panel") at a hearing which was held on May 28, 2009 in Toronto.

A Notice of Hearing dated March 13, 2008, containing a Statement of Allegations was filed as Exhibit No. 1.

The Statement of Allegations enumerated several aspects of Ms. Nurse's practice where the College alleged that Ms. Nurse [also referred to hereinafter as the "Member"] engaged in professional misconduct within the meaning of paragraphs 1 (by contravening a term, condition or limitation imposed on the member's certificate of registration), 2 (by failing to maintain a standard of practice of the profession), 4 (by delegating a controlled act in contravention of the Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts), 10 (by failing to refer a patient or client to more appropriate service when the member is unable to provide adequate service or failing to

refer a patient or client who requires additional services in other professional areas), 15 (by failing to co-operate with the College during the course of the complaints process which includes but is not limited to, the receipt and assessment of the complaint, the investigation of the complaint and any disciplinary procedures addressing the complaint), 19 (by failing to keep records as required), 20 (by falsifying a record relating to the member's practice), 22 (by signing or issuing, in the member's professional capacity, a document that the member knows contains a false or misleading statement), and 37 (by engaging in conduct or performing an act, relevant to the practice of the profession, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional) of section 1 of O. Reg. 749/93 made under the Audiology and Speech-Language Pathology Act, 1991 ("Professional Misconduct Regulation"),

At the request of counsel for the College and with the consent of the Member's counsel, the Panel issued the following Order in order to protect the identity of patients who would be referred to in the Hearing:

"Pursuant to subsection 45(3) of the Health Professions Procedural Code of the Regulated Health Professions Act, 1991, this panel of the Discipline Committee of the College of Audiologists and Speech-Language Pathologists of Ontario ("Panel") orders a ban on the publication or broadcasting of any patient's name or anything that would tend to identify a patient referred to at the Hearing including any document filed at the Hearing."

An Agreed Statement of Facts dated May 28, 2009 was filed on the consent of both parties as Exhibit No. 2. It contained the following:

"Background

Sandra Nurse was, at all material times, an audiologist registered as a member of the College of Audiologists and Speech-Language Pathologists of Ontario (the "College"). She has practiced in Ontario since 2001.
The following allegations concerning client/patient care and standards of practice arose following an investigation into Ms. Nurse's practice which included, among other things, a random review of patient charts.
The investigation of this matter also involved many interviews with patients, facility staff and with Ms. Nurse. One of the more relevant and significant interviews with Ms. Nurse was conducted by an experienced investigator, Dean Benard, on November 16, 2007. A copy of Mr. Benard's Memorandum summarizing this interview is attached hereto at Tab A.

Record keeping

With respect to CT, PG, RA, JL and GM, patients/clients of Ms. Nurse, Ms. Nurse did not keep adequate or appropriate records. In particular, Ms. Nurse did not record a case history which is a core requirement of a proper audiologic examination. Nor did Ms. Nurse make notes for each patient/client visit or record hearing aid prescriptions. Copies of Ms. Nurse's records of the above-noted patients/clients are contained under Tabs B through F, respectively.
Ms. Nurse thereby engaged in professional misconduct within the meaning of paragraphs 2 (failing to maintain a standard of practice of the profession) and 19 (failing to keep records as required) of section 1 of 0. Reg. 749/93, under the Audiology and Speech-Language Pathology Act, 1991 (the "Regulation").

Referrals

With respect to WH, CM, PG, RA, JL and GM, patients/clients of Ms. Nurse, Ms. Nurse did not identify or appropriately refer cases which required medical referral in accordance with professional standards.
In particular, these patients/clients presented with asymmetric sensorineural hearing loss which warranted further medical evaluation to rule out retrocochlear pathologies. The records for WH are under Tab G; the records for CM are under Tab H; the records for PG are under Tab C, the records for RA are under Tab D; the records for JL are under Tab E; the records for GM are under Tab F.
With respect to patient/client CT, Ms. Nurse did not initiate a medical referral even though such a referral was indicated by the client's/patient's unexpectedly poor word recognition performance bilaterally. The records for CT are under Tab B.
Ms. Nurse thereby engaged in professional misconduct within the meaning of paragraphs 2 (failing to maintain a standard of practice of the profession) and 10 (failing to refer a patient or client to more appropriate service when the member is unable to provide adequate service or failing to refer a patient or client who requires additional services in other professional areas) of section 1 of the Regulation

Prescription of Hearing Aids

With respect to CM, RA, AP, HE, PH, DS, and RB, patients/clients of Ms. Nurse, Ms. Nurse did not properly prescribe hearing aids. In particular, Ms. Nurse inappropriately delegated and did not perform the requisite core components of amplification prescription including device selection, verification and validation

as defined in CASLPO's Preferred Practice Cruidelines for the Prescription of Hearing Aids to Adults. The records for the above patients (except CM and RA which are at Tabs H and D) are under Tabs I through M, respectively.

Attached hereto at Tab N is a copy of the Preferred Practice Guideline for the Prescription of Hearing Aids to Adults of the College of Audiologists and Speech-Language Pathologists of Ontario which addresses the above-noted allegations.
Ms. Nurse thereby engaged in professional misconduct within the meaning of paragraphs 2 (failing to maintain a standard of practice of the profession) and 4 (delegating a controlled act in contravention of the Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts) of section 1 of the Regulation.

Assessments

With respect to GM, KS, WH, DP, CT, JT, HS, PG, RA, JB, EB, JC, MM, CB, DY, JL and GT, patients/clients of Ms. Nurse, Ms. Nurse failed to perform a complete assessment by omitting threshold measures at 250 Hz and failing to complete immittance measures both of which are standard components of audiologric assessments. The records for KS, DP, JT, HS, JB, EB, JC, MM, CB, DY and GT are under Tabs O through Y, respectively. The records for GM are under Tab F.
Ms. Nurse thereby engaged in professional misconduct within the meaning of paragraph 2 (failing to maintain a standard of practice of the profession) of section 1 of the Regulation.
Ms. Nurse did not provide an appropriate audiologic examination and intervention with respect to the following patients/clients:

a. With respect to WH (Tab G), Ms. Nurse did not obtain required masked thresholds for the right ear (in accordance with ANSI S3.21), make comments or recommendations with respect to the right-ear asymmetry, provide a record or explanation, or take necessary action (by initiating a medical referral) regarding unexpectedly poor word recognition in the right ear. Furthermore, a "hearing aid trial" was inappropriately recommended based on clinical findings.

b. With respect to CM (Tab H), Ms. Nurse did not obtain necessary masked thresholds for the left ear (in accordance with ANSI S3.21) and she drew clinical conclusions that were not adequately supported by the incomplete results obtained.

c. With respect to RA (Tab D), Ms. Nurse did not comment, explain or take appropriate action based on clinical findings. She did not complete requisite masking (in accordance with ANSI S3.21) or

initiate a medical referral as was indicated by the client's/patient's left ear sensorineural asymmetry and poor word recognition.

d. With respect to MM and KS (Tabs V and O, respectively), Ms. Nurse failed to provide a complete audiologic examination by omitting interoctave thresholds as indicated by a disparity of 20 dB or greater between octaves (in accordance with ANSI S3.21).

In each of the above cases, Ms. Nurse engaged in professional misconduct within the meaning of paragraph 2 (failing to maintain a standard of practice of the profession) of section 1 of the Regulation.
With respect to her patients at Beethoven Hearing Centre, Ms. Nurse obtained audiometric thresholds under inappropriate clinical conditions (i.e., without the use of a sound-treated booth) and in the presence of excessive ambient noise. Moreover, no sound-level measurements were completed to determine acceptable minimal test condition thresholds as defined by ANSI S3.1 standards.
Had she testified, Ms. Nurse would have stated that she brought this issue to the attention of the centre operator but continued to treat patients despite the fact the situation was not rectified.
Ms. Nurse thereby engaged in professional misconduct within the meaning of paragraph 2 (failing to maintain a standard of practice of the profession) of section 1 of the Regulation.

Places of Work & Supervision

Between 2005 and January, 2007, Ms. Nurse repeatedly made material misrepresentations to the College with respect to the location of her places of work. Ms. Nurse made these misrepresentations on registration renewal application forms and to a College investigator on more than one occasion.
On the College renewal applications, members are asked to list all of their workplaces and they represent to the College that all of the information on the forms is complete and accurate. However, Ms. Nurse repeatedly failed to list a number of her places of employment.
When completing renewal forms, members must sign a series of statements, including:

"I hereby certify that the statements made by me on this form are complete and correct. I understand that a false or misleading statement may be cause for revocation of my certificate of registration or any disciplinary action."

In addition, on April 21, 2005, while being interviewed by the College's

investigator Marilyn Bartlett, Ms. Bartlett asked Ms. Nurse all of the locations where she was working. Ms. Nurse provided only two (2) locations to Ms. Bartlett whereas Ms. Nurse was in fact working at four (4) other locations/employers.

When interviewed by Ms. Bartlett on April 10, 2006, Ms. Nurse said that she was only working at three (3) locations whereas she was working at at least two (2) others that she failed to disclose.
Had she testified, Ms. Nurse would have said that she was not forthright about her locations and places of work because (a) she initially did not appreciate the importance of the College renewal application and (b) she was concerned about increased attention from the College and how her employers may react to such attention because she was aware that she was not practicing in compliance with the standards of practice of the profession at those locations.
Ms. Nurse thereby engaged in professional misconduct within the meaning of paragraphs 2 (failing to maintain a standard of practice of the profession) 20 (falsifying a record relating to the member's practice) and 22 (signing or issuing, in the member's professional capacity, a document that the member knows contains a false or misleading statement) of section 1 of the Regulation.
Between November 7, 2006 and May 7, 2007, Ms. Nurse practised audiology without being supervised, contrary to terms, conditions and limitations to which her certificate of registration was subject during that period. For example, Ms. Nurse frequently performed audiologic services at a location (Beethoven Hearing Centre Inc.) which she had not reported to the College with the result that the College could not arrange for the supervisor to attend that facility, among others.
Ms. Nurse thereby engaged in professional misconduct within the meaning of paragraph 1 (contravening a term, condition or limitation imposed on the member's certificate of registration) of section 1 of the Regulation.

Misleading an Investigator

29, During the course of the investigation, Ms. Nurse repeatedly and materially misled an investigator retained by the College, and the College, as to the extent to which she prescribed hearing aids, by providing false information to the investigator.

In particular, Ms. Nurse advised the College's investigator on more than one occasion that she did not usually prescribe hearing aids and that she just performed hearing tests and advised the patient's family physician or otolaryngologist who then sent the patient to a hearing aid dispenser, However, information obtained by the College from the Assistive Devices program indicates that between December 1, 2004 and June 30, 2006 Ms. Nurse prescribed

approximately 197 hearing aids at what appears to be five (5) locations previously unidentified by Ms. Nurse. Had she testified, Ms. Nurse would have stated that she was not forthright with the College regarding her hearing aid prescription because she was concerned about her practices at certain clinics.

Ms. Nurse thereby engaged in professional misconduct within the meaning of paragraphs 15 (failing to co-operate with the College during the course of the complaints process which includes but is not limited to, the receipt and assessment of the complaint, the investigation of the complaint and any disciplinary procedures addressing the complaint) and 20 (falsifying a record relating to the member's practice) of section 1 of the Regulation.

Conclusion

The parties hereby accept these facts as accurate.
Ms. Nurse understands the nature of the allegations that have been made against her and that by voluntarily admitting these allegations, she waives her right to require the College to otherwise prove the case against her. Ms. Nurse further understands that the Discipline Committee can accept that the facts herein constitute professional misconduct.
Ms. Nurse further understands that depending on any penalty ordered by the Discipline Committee, the panel's decision and reasons may be published, including the facts contained herein and the member's name.
Ms. Nurse further understands that the agreement reached between the College and the member does not necessarily bind the Discipline Committee.
Ms. Nurse acknowledges that she has had the opportunity to receive independent legal advice."

The Member admitted to the allegations of professional misconduct as enumerated in the Agreed Statement of Facts (Exhibit No. 2).

The Panel conducted a plea inquiry and was satisfied that the Member's admission was voluntary, informed and unequivocal.

After giving both counsel an opportunity to make submissions respecting the finding of professional misconduct, the Panel withdrew to deliberate.

After some deliberation, the Panel requested details of the terms, conditions and limitations to which the Member's certificate of registration was subject from November 7, 2006 to May 7, 2007. An outline of the terms, conditions and limitations to which the Member's certificate of registration was subject during that period was submitted on the consent of both parties as Exhibit No. 3. It provided evidence that the

Member's certificate of registration was subject to terms, conditions and limitations which included that the Member was to practise under the supervision of a mentor selected by the College.

In addition, the Panel requested clarification from the parties with regard to certain facts agreed upon in the Agreed Statement of Facts, namely:

How the Member had engaged in professional misconduct within the meaning of paragraph 4 (by delegating a controlled act in contravention of the Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts) of section 1 of the Professional Misconduct Regulation, as more specifically referred to in paragraphs 10, 11 and 12 of the Agreed Statement of Facts; and
How the facts as agreed to in paragraphs 29 and 30 of the Agreed Statement of Facts would support the proposed finding as contained in paragraph 31 of the Agreed Statement of Facts, namely, that the Member had engaged in professional misconduct within the meaning of paragraphs 15 (by failing to co-operate with the College during the course of the complaints process, the investigation of the complaint and any disciplinary procedures addressing the complaint) or 20 (by falsifying a record relating to the member's practice) of section 1 of the Professional Misconduct Regulation. In this regard, the Panel could find no evidence of a complaint nor did it appear that the facts as set out in paragraphs 29 and 30 supported a finding that the Member had falsified a record relating to the Member's practice.

After providing the parties an opportunity to discuss the matter privately, the parties jointly asked for and received the Panel's permission to amend the Agreed Statement of Facts by:

Amending paragraphs 10 and 12 to remove any reference to improper delegation and to specifically remove from paragraph 12 the allegation that the member contravened paragraph 4 of section 1 of the Regulation.
Deleting paragraph 31 and substituting the following:

"Ms. Nurse thereby engaged in professional misconduct within the meaning of paragraph 37 (by engaging in conduct or performing an act, relevant to the practice of the profession, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional) of section 1 of the Professional Misconduct Regulation."

The Hearing proceeded on the basis of the revised Agreed Statement of Facts.

DECISION ON FINDING

OF PROFESSIONAL MISDCONDUCT

The Panel accepted the Member's admissions as contained in the revised Agreed Statement of Facts and made the following findings:

Record Keeping

The Panel found the Member guilty of professional misconduct as defined by paragraph 2 (failing to maintain a standard of practice of the profession) and paragraph 19 (failing to keep records as required) of section 1 of the Professional Misconduct Regulation in that, with respect to patients/clients CT, PG, RA, JL, and GM, the Member failed to keep adequate or appropriate records.

Referrals

The Panel found the Member guilty of professional misconduct as defined by paragraph 2 (failing to maintain a standard of practice of the profession) and paragraph 10 (failing to refer a patient or client to more appropriate service after the member is unable to provide adequate service or failing to refer a patient or client who requires additional services in other professional areas) of section 1 of the Professional Misconduct Regulation in that, with respect to patient/clients WH, CM, PG, RA, JL, and GM, the Member did not identify or appropriately refer cases which required medical referral in accordance with professional standards.

Prescription of Hearing Aids

The Panel found the Member guilty of professional misconduct as defined by paragraph 2 (failing to maintain a standard of practice of the profession) of section 1 of the Professional Misconduct Regulation in that, with respect to patients/clients CM, RA, AP, HE, PH, DS and RB, the Member did not properly prescribe hearing aids and did not perform the requisite core components of amplification prescription including device selection, verification and validations contrary to the standards of practice,

Assessments

(a) with respect to patient/clients GM, KS, WH, DP, CT, JT, HS, PG, RA, JB, EB, JC, MM, CB, DY, JL, and GT, the Member failed to perform a complete assessment by omitting threshold measures at 250 Hz and failed to complete immittance measures both of which are standard components of audiologic assessments;

(b) the Member did not provide appropriate audiologic examination and intervention with respect to patients/clients WH, CM, RA, MM and KS in that

(i) with respect to WH, the Member did not obtain required masked thresholds for the right ear [in accordance with ANSI S3.21, make comments or recommendations with respect to the right ear asymmetry, provide a record or explanation, or take necessary action by initiating a medical referral] regarding unexpectedly poor word recognition in the right ear as well as inappropriately recommending a hearing aid trial;

(ii) with respect to CM, the Member did not obtain required masked thresholds for the left ear [in accordance with ANSI S3.21] and she drew clinical conclusions that were not adequately supported by the incomplete results obtained;

(iii) with respect to RH, the Member did not comment, explain or take appropriate action based on clinical findings and in particular, did not complete requisite masking [in accordance with ANSI S3.21] or initiate a medical referral as was indicated by the patient's/client's left ear sensorineural asymmetry and poor word recognition; and

(iv) with respect to MM and KS, the Member failed to provide a complete audiological examination by omitting interoctave thresholds as indicated by a disparity of 20 dB or greater between octaves (in accordance with ANSI S3.21); and

Member obtained audiometric thresholds under inappropriate clinical conditions (i.e. without the use of a sound-treated booth) and in the presence of excessive ambient noise and without obtaining sound-level measurements to determine acceptable minimal test condition thresholds as defined by ANSI S3.1 standards.

Places of Work and Supervision

The Panel found the Member guilty of professional misconduct as defined by paragraph 2 (failing to maintain a standard of practice of the profession), paragraph 20 (falsifying a record relating to the member's practice) and paragraph 22 (signing or issuing, in the member's professional capacity, a document that the member knew contained a false or misleading statement) of section 1 of the Professional Misconduct Regulation in that, on April 21, 2005 and on April 10, 2006, the Member made misrepresentations to the College's investigator with respect to the number of locations at which she was working.,

The Panel also found the Member guilty of professional misconduct as defined by paragraph 1 (contravening a term, condition, or limitation imposed on the member's certificate of registration) of section 1 of the Professional Misconduct Act in that, between November 7, 2006 and May 7, 2007, the Member practised audiology without being supervised contrary to the terms, conditions and limitations to which her certificate of registration was then subject.

Misleading an Investigator

The Panel found the Member guilty of professional misconduct as defined by paragraph 37 (engaging in conduct or performing an act, relevant to the practice of the profession, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional) of section 1 of the Professional Misconduct Regulation in that, the Member repeatedly and materially misled an investigator retained by the College as to the extent to which she prescribed hearing aids by providing false information to the investigator.

PENALTY

The parties filed a Joint Submission as to Penalty dated May 28, 2009 which was marked as Exhibit No. 4. The Joint Submission suggested that the following penalty would be appropriate in the circumstances of this case:

"1. The member shall be required to appear before the Discipline Committee Panel to be reprimanded, the fact of which shall be recorded in the register.

The Registrar shall be directed to impose, for an indefinite period of time, a specified term, condition and limitation on the member's certificate of registration requiring her to inform the College of all of her employment and practice locations and requiring her to advise the College of any changes to her employment and practice locations within thirty (30) days of the change.
The Registrar shall be directed to suspend the member's certificate of registration for a period of four (4) months, subject to the following provisions:

a. two (2) months of the suspension shall be suspended provided that the member satisfies the following specified terms, conditions and limitations on the member's certificate of registration:

i. The member provides proof satisfactory to the Registrar of the successful completion of the courses set out in Appendix "A", attached hereto, by December 31, 2009. The College and the member shall each pay 50% of the costs of the courses.

ii. Subject to the suspension of the member's certificate of registration for the periods set out in paragraph 3b. below, the member provides proof satisfactory to the Registrar of the successful completion of a period of monitoring and mentoring described in Appendix "B", attached hereto.

iii. The member completes an essay to the satisfaction of the Registrar by December 31, 2009 that is a minimum of 2500 words and addresses the role of the College as a regulator and the obligations of audiologists as regulated health practitioners, and which identifies and discusses a minimum of five (5) clinical areas of concern that were raised in this case as to the member's standards

of practice, and discusses how she has improved her practice in those areas.

b. The first two months of the suspension of the member's certificate of registration shall be fixed for August, 2009 and December, 2009, In the event that the member fails to successfully complete the requirements contained in paragraph 3a. of this Joint Submission as to Penalty, the balance of the suspension shall be served in February and March, 2010.

The member shall pay to the College a portion of the College's costs and expenses fixed in the amount of $2,000.00 within twelve (12) months of the date of the hearing of this matter.
The member acknowledges that the results of the proceeding will be included in the register pursuant to subsection 23(5) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991.
Had she testified, Ms. Nurse would have stated that she recognizes the significance of this matter and is apologetic for her conduct. She would also state that she vows to work diligently with her monitor and to be entirely honest and cooperative with the College in all matters.
Should the Discipline Committee Panel make an order as set out in the preceding paragraphs, the member acknowledges that this matter will be publicized through, among other things, CASLPO Today and the public portion of the register, and that publication will include, among other things, the member's name.
The member acknowledges that this Joint Submission as to Penalty is not binding upon the Discipline Committee.
The member acknowledges that she has had the opportunity to receive, and has in fact received, independent legal advice.

Appendix "A"

Optimizing Hearing Aid Outcomes Through Evidence Based Practice http://eo2.commpartners.com/users/audio/series.php?id=179

Avoiding Medical Errors in Audiology

http://e02.conmpartners.com/users/audio/session.php?id=1805

A Framework for Resolving Ethical Dilemmas: The Academy's Code of Ethics http://eo2.commpartners.com/users/audio/series.php?id=141

Verification of Hearing Aid Performance

http://www.asha.org/eWeb/OLSDynamicPage.aspx?Webcode=olsdetails&title=Verification+of+Hearing+Aid+Performance

Appendix "B"

Subject to paragraph 3 of the attached Joint Submission as to Penalty, the member shall be monitored and mentored from July 1, 2009 until December 31, 2009 ("the monitoring period") by a monitor/mentor selected by the Registrar in consultation with the member.
The member shall be monitored and mentored once per week for a minimum of half a day on each occasion.
The member shall provide to the monitor/mentor by no later than 5:00 p.m. on the Thursday of each week during the monitoring period¹ a schedule of where she will be practising during the following week in order that arrangements can be made for the monitor/mentor to attend at one of the member's practice locations, which location is to be determined by the monitor/mentor in his or her complete discretion. The monitor/mentor shall advise the member where he/she intends to attend the following week by leaving a message with the member at the following telephone number by 5:00 p.m. the previous Friday: 416 ??? ????.
The monitoring and mentoring shall cover all aspects of clinical and professional practice and include (but not be limited to) the following areas: record-keeping, circumstances to refer patients/clients for a medical assessment, CASLPO components in prescribing hearing aids, appropriate noise level for hearing aid testing, frequencies to test at assessment, the necessity of conducting immittance measures, the significance of poor Word Recognition Scores (WRS) and what to do about them, when to mask, interpretation of asymmetry, when to obtain inter-octave thresholds, and how to interpret an audiogram.
Following each monitoring and mentoring session, the monitor/mentor shall prepare a report of the session, which report will include the monitor/mentor's opinion as to the knowledge and skills of the member. Copies of the monitor/mentor's reports will be provided to the member and to the Registrar and the member shall have an opportunity to make submissions to the Registrar in response to the reports.
By the end of the monitoring period, the reports and the members submissions, if any, must demonstrate general compliance with all standards of practice and the terms of this order, and must otherwise be to the satisfaction of the Registrar. Any alleged breaches of the standards of practice or other professional misconduct concerns that are identified in the reports may be referred to the Executive Committee for possible further proceedings including the referral of allegations of professional misconduct to the Discipline Committee.
The College and the member shall each pay 50% of all of the costs of the monitoring and mentoring, including but not limited to the monitor's/mentor's preparation time, the costs of attendance, travel time and the time required to prepare reports to the Registrar."

The parties made submissions respecting the Joint Submission as to Penalty and each of them filed a Book of Authorities containing cases to assist the Panel in making its determination. The Panel withdrew to deliberate.

Prior to completing its deliberation, the Panel identified certain concerns in respect of the form of the proposed penalty. Having advised the parties of those concerns, the parties

jointly asked for and received the Panel's permission to amend the Joint Submission as to Penalty as follows:

To add the words "which are hereby directed to be imposed by the Registrar on the member's certificate of registration" to the opening portion of subparagraph 3a such that it would read

"a. two (2) months of the suspension shall be suspended provided that the member satisfies the following specified terms, conditions and limitations, which are hereby directed to be imposed on the member's certificate of registration:";

To remove the words "of this Joint Submission as to Penalty" from subparagraph 3b and to substitute the words 'of this Order";
To add a new paragraph after paragraph 4 as follows:

"Each of the terms, conditions and limitations, imposed by virtue of paragraph 3a shall be removed from the member's certificate of registration when the Registrar is satisfied that the term, condition or limitation has been fulfilled."; and

To amend paragraph 3 of Appendix B to delete the last sentence and substitute the following:

"The monitor/mentor shall advise the member where he/she intends to attend the following week by leaving a message with the member at the member's telephone number required to be placed on the register by s-s.23(2)(a) of the Health Professions Procedural Code unless the member and the monitor/mentor agree otherwise".

PENALTY DECISION

The Panel understood from the submissions of the parties that where a hearing involved a Joint Submission on Penalty, the Panel should accept the proposal if it is within a reasonable range of penalties for similar conduct. It also understood that it was not its role to make minor changes to a penalty when jointly submitted and that so long as the penalty would not bring the administration of the proceedings into disrepute, it should accept the Joint Submission. This Panel believed that it should not accept a Joint Submission as to Penalty where the penalty would compromise the integrity of the process thereby causing the public to lose trust in the College's ability to self-regulate. The Panel recognized that Joint Submissions of this type are an important part of all levels of justice and that in the context of a discipline proceeding it is important that members can be reasonably assured when they enter into an agreement with the College that it will be accepted by the Discipline Committee.

The Panel concluded that the proposed jointly submitted penalty, as amended, was reasonable and in the public interest.

The Panel, therefore, accepted the Joint Submission as to Penalty and issued that Order, as amended on consent.

REASONS FOR THE PENALTY

There are several audiences for this Order on Penalty.

The public which has to be assured that the College takes this misconduct very seriously and that it is capable of policing the profession and protecting the public.
The profession which must be sent a message, in the strongest of terms, that this type of behaviour is totally unacceptable.
The Member, who must suffer consequences for her actions to ensure that the behaviour will not occur again and who, at the same time, shall be provided with an opportunity for rehabilitation.

In the Panel's view, the penalty imposed constituted a reasonable one which balanced all of the principles of sentencing. The conduct which Ms. Nurse engaged in was a serious breach of her professional and ethical obligations. The Panel also wanted members of the profession to know that conduct of this nature would not be tolerated and believed that the proposed penalty would have that effect.

I, Meg Petkoff, sign this Decision and Reasons for the Decision as Chair of this Discipline Panel and on behalf of the members of the Discipline Panel as listed below:

Date:

Panel of the Discipline Committee:

Rosanne Lavallée-McNamee John Oleg Krawchenko

Ferne Dezenhouse

Footnotes

The first such notice to the monitor/mentor will be given one week before July 1, 2009 and no such notice will be required in the last week of December, 2009.