Citation and Court Information

CITATION: Longman v. Ontario College of Pharmacists, 2021 ONSC 1610

DIVISIONAL COURT FILE NO.: 20-211

DATE: 20210315

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SWINTON, PATTILLO and BLOOM JJ.

BETWEEN:

KEVIN LONGMAN Applicant

– and –

ONTARIO COLLEGE OF PHARMACISTS Respondent

COUNSEL: Lorne Honickman and Laura Brown, for the Applicant Richard Steineke, for the Respondent

HEARD by Video Conference at Toronto: October 26, 2020

Reasons for Decision

L. A. PATTILLO J.:

Introduction

[1] Kevin Longman (the “Applicant”) brings this application for judicial review of the April 8, 2020 decision of the respondent Ontario College of Pharmacists’ (the “College”) Inquiries, Complaints and Review Committee (“ICRC”) to issue him an oral caution and require that he complete a specified remediation program.

[2] For the reasons that follow, the application is dismissed. In my view, having regard to the circumstances and the ICRC’s reasons as a whole, the decision is reasonable. Nor are the remedial measures imposed on the Applicant disproportionate or clearly unfit having regard to the facts found by the ICRC.

Background

[3] The Applicant is a staff pharmacist at a pharmacy located in a retail drug store (the “Pharmacy”).

a) The Prescription

[4] On May 10, 2018, the Pharmacy received a prescription from a doctor for a pediatric patient. The prescription was for Vyvanse and contained specific instructions to: 1) dispense 10 mg initially; 2) continue with 10 mg or 20 mg as per the parent’s direction; and 3) provide four further refills. It also provided a stop order to discontinue the prescription after seven months (December 10, 2018). The stop order included any unfilled repeats of old prescriptions for Vyvanse. The prescription specifically noted that it superseded any previous prescriptions for Vyvanse (the “Prescription”).

[5] At the time the Prescription was received, the Pharmacy used a computer program to enter the details of prescriptions. The computer program did not readily accommodate stop dates or a scanned copy of the original prescription. As a result, the original prescription was placed in a log and filed at the Pharmacy.

b) Dispensing the Prescription

[6] On May 10, 2018, the Applicant was the dispensing pharmacist for the Prescription. He dispensed the initial 10 mg amount and entered it onto the Pharmacy’s computer system (RX#9700628).

[7] Later that day, the Prescription’s further instructions to continue with either 10 or 20 mg as directed by the parent were entered into the Pharmacy’s system by a staff pharmacist other than the Applicant as two separate prescriptions (RX#9700750 for Vyvanse 10 mg and RX#9700751 for Vyvanse 20 mg) with no notation that they were either/or choice strengths. Further, none of the older Vyvanse prescriptions on the system were inactivated.

[8] On June 4, 2018, the patient’s mother attended at the Pharmacy and opted for the 10 mg strength. The Applicant was the dispensing pharmacist and filled RX#9700750.

[9] On September 16, 2018, the patient’s mother requested a refill of Vyvanse 20 mg under prescription RX#9654094, an earlier prescription which pre-dated the Prescription. RX#9654094 was last filled at the Pharmacy on November 20, 2017. The refill was filled by the Applicant.

[10] On December 3, 2018, another staff pharmacist dispensed the “first fill” of Vyvanse 20 mg portion of the Prescription, RX#9700751.

[11] On January 7, 2019, the Applicant dispensed the first refill of Vyvanse 20 mg, RX#9700751.

[12] On February 10, 2019 and March 15, 2019, another staff pharmacist dispensed the remaining two refills on Vyvanse 20 mg, RX#9700751.

c) The Investigation

[13] On April 15, 2019, the doctor who prescribed the Prescription received a reauthorization request from the Pharmacy. As the request showed that the Prescription had been filled after his directed stop date, the doctor became concerned and wrote to the College about the Applicant’s dispensing and record keeping practices.

[14] As a result of the doctor’s letter, which he subsequently clarified should be treated as a report rather than a formal complaint, the College obtained the Pharmacy’s records concerning the dispensing of the Prescription. On August 15, 2019, the Registrar of the College appointed an investigator to inquire into and examine the Applicant’s practice, conduct or actions with respect to possible professional misconduct or incompetence pursuant to s. 75(1)(a) of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, S.O. 1991, c. 18 (the “Code”).

[15] The investigator’s Report dated October 2, 2019 was received by the Registrar the same day and sent to the Applicant on October 3, 2019. In the accompanying letter, the Applicant was advised, among other things, that he should provide a written response to the Report on or before November 4, 2019.

[16] The Applicant submitted his response to the Report on November 4, 2019. He noted that the dispensing errors occurred, in part, due to the inadequacy of the software system the Pharmacy was using and the unconventional way the Prescription was recorded in the system. He acknowledged he was the dispensing pharmacist on May 10 and June 4, 2018. With respect to the September 16, 2018 refill, he conceded that he made an error in judgment and said it was an “unfortunate decision” to proceed. He recognised with hindsight that he should have investigated further given the prescription had not been filled in approximately a year. He dispensed the January 7, 2019 refill because the system said it was refillable.

[17] The Applicant concluded his November 1, 2019 response by stating he sincerely regretted his actions on September 16, 2018, and any inconvenience experienced by the patient and promised to be more vigilant and more critical in his thought process.

[18] On November 4, 2019, the College provided the Applicant with a copy of the response to the incident by another of the dispensing pharmacists at the Pharmacy.

[19] On November 14, 2019, the Applicant provided a further response to the College in which he disagreed with his colleague’s statement that when the 10 mg was dispensed on June 4, 2018, the 20 mg should have been discontinued. He again acknowledged his failure to investigate the September 16, 2018 refill given the circumstances and called it an error he deeply regretted. He noted he had learned and reaffirmed the importance of thoroughly checking prescriptions and exercising extra caution when filling and refilling prescriptions.

d) The ICRC Decision

[20] On January 10, 2020, the ICRC met to consider the Report detailing the results of the investigation into the Applicant along with the Applicant’s responses. On April 8, 2020, the ICRC released its decision to issue the Applicant an Oral Caution and require that he complete specified remediation in respect of medication safety.

[21] In reaching its decision, the ICRC reviewed the background behind the investigation, the investigation results including the terms of the Prescription itself and its detailed dispensing history and summarized, in detail, the Applicant’s submissions.

[22] In its reasons for decision, the ICRC recognised that the Pharmacy had a number of inadequate processes in place which were not the Applicant’s responsibility; that he was not the pharmacist who logged the Prescription as two separate prescriptions on May 10, 2018; that the Prescription was “unique” and “unusually written”; and that he was not the only pharmacist at the Pharmacy that erred. Nevertheless, it concluded the Applicant should have exercised more care and due diligence in dispensing the medication. Specifically, it concluded, among other things:

1. The Applicant missed a number of opportunities to identify issues and should have had certain checks as part of his own process for dispensing including, when dispensing from a logged prescription, checking the original prescription to ensure accuracy;

2. While the Applicant said he checked using the original prescription in respect of the June 4, 2018 fill, he still missed pertinent information;

3. The Applicant should have exercised more care in dispensing the medication which was a “red-flag” medication given it was a controlled drug and the pediatric patient was a “red-flag” patient;

4. Greater due diligence would have identified that two prescriptions were logged which was not the intent of the prescriber;

5. The Applicant ought to have identified that the September 16, 2018 refill was old (more than a year) which should have caused him to investigate the patient’s history further;

6. The Pharmacy staff, including the Applicant, did not ask enough questions about what they were dispensing; in this instance, why there were two prescriptions on hold, why an old prescription was still active although the newer prescription specified that it overrode older prescriptions, and that there was an end date identified. The result was that a controlled drug was dispensed without authorization; and

7. The Applicant ought to be aware of what more appropriate actions could have been taken for future reference.

[23] Based on its reasons and as noted at the outset, the ICRC decided to issue the Applicant an oral caution and require that he complete a specified continuing education or remediation program dealing with medication safety.

[24] The caution, the wording of which is set out at the conclusion of the decision, is directed to the importance of communication with members of the patient’s health care team and exercising care in the dispensing process, particularly in regards to a “red flag” medication, having due regard to the best interests of the patient.

Position of the Parties

[25] In his factum, the Applicant submits the ICRC’s decision should be quashed on the basis that it fails to meet the “intelligible, transparent and justified” requirements for a reasonable decision as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 and is therefore unreasonable. He further submits that the penalty imposed by the ICRC is unduly harsh in the circumstances and therefore also unreasonable. Finally, the Applicant submits that the ICRC breached its duty of procedural fairness by failing to adhere to timelines set out in the Code.

[26] The College submits that there was no breach of the duty of procedural fairness in this case. The Applicant conflates the procedural requirements for complaints with those applying to the Registrar’s investigative reports. There was no breach of the applicable timelines.

[27] The College further submits that the ICRC’s decision meets the standard of reasonableness as set out in Vavilov and that, in the circumstances, the ICRC’s conclusion to administer an oral caution and require specific education was also reasonable.

Standard of Review

[28] The parties agree that in accordance with Vavilov, at para. 10, the standard of review in respect of the judicial review of the ICRC’s decision is reasonableness.

[29] A reasonable decision is one that is based both on an internally coherent reasoning and justified in light of the legal and factual constraints that bear on the decision: Vavilov, paras. 99-107.

[30] Further, in order to overturn a decision on penalty, it must be shown that the decision maker made an error in principle or that the penalty was clearly unfit: Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 (SCDC) at para. 18.

[31] Finally, with respect to procedural fairness, there is no standard of review. Rather, the reviewing court must determine whether the appropriate level of procedural fairness was accorded having regard to the factors in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (SCC).

Analysis

Procedural Fairness

[32] At the outset of the hearing, the Applicant advised that he was not pursuing his allegations of procedural unfairness.

Reasonableness

[33] The ICRC performs a screening function. Its role is to investigate concerns and determine whether the matter warrants a referral to discipline on account of professional misconduct or incompetence or some lesser remedial measure including closing the file is called for. See: Léger-Legault v. Ontario College of Teachers (2008), 242 OAC 126 (Div. Ct.) at para. 10.

[34] The Applicant submits that the ICRC’s decision is unreasonable in that it is not “transparent, intelligible and justified” as required by Vavilov. Specifically, he submits that the decision is overly general and fails to provide sufficient detail to justify its finding of misconduct; inappropriately conflates its conclusions regarding the Applicant with the Pharmacy’s insufficient processes and errors by other staff members; and fails to consider defences raised by him.

[35] I do not consider that the ICRC’s decision, when read as a whole, is overly general or fails to provide sufficient detail of the incident or the Applicant’s involvement in them. It sets out in detail the dispensing record in connection with the Prescription and the Applicant’s involvement. It details the errors which occurred and specifically what it considered were the Applicant’s errors. They related to his failure to take care when dispensing the Prescription which involved a “red flag” medication and a “red flag” patient, as well as his failure to exercise greater due diligence in the circumstances. Contrary to the Applicant’s submission, the decision tells him what he did wrong.

[36] The Applicant himself acknowledged that he made an “error in judgment” in dispensing a refill in a prior prescription on September 16, 2018 and acknowledged, in the circumstances, he should have investigated further. The ICRC agreed and concluded that the Applicant ought to have identified that the prescription was old and investigated further.

[37] September 16, 2018 was not the Applicant’s only due diligence failure noted by the ICRC. On June 4, 2018, on the instructions of the patient’s mother, he filled the 10 mg portion of the Prescription. As that was a “first fill”, he acknowledged he obtained the log and viewed the Prescription in accordance with Pharmacy policy (data verification). The ICRC concluded that he “still missed pertinent information.” Based on the evidence, that conclusion was reasonable. In viewing the Prescription, he would have seen the limitations placed on it which were not reflected in the Pharmacy’s computer system, prompting further inquiry. There was none.

[38] Further, in respect of the refill of the 20 mg portion of the Prescription on January 7, 2019, which was beyond the expiry date in the Prescription, the Applicant relied on the information in the Pharmacy’s computer system as well as its policy that it was not necessary to do a data verification when filling a refill. Neither was appropriate. The Applicant recognised the limitations of the computer system and particularly that a copy of the Prescription could not be placed on the system.

[39] Further, and given such limitation, the ICRC noted that it was important to check the original prescription. After pointing out that the Applicant ought to have made certain checks as part of his own processes for dispensing, the ICRC stated:

Pharmacists dispensing from a logged prescription should still engage in checks using the original prescription to ensure accuracy and should engage with all available information to ensure patients are provided with the appropriate medication per the intentions of the prescriber.

[40] Had he done that, the Applicant would have seen that the Prescription had expired.

[41] I also do not agree that the ICRC conflated its conclusions in respect of the Applicant with the Pharmacy’s insufficient processes and errors by other staff members. The ICRC acknowledged on more than one occasion that the Pharmacy had a number of inadequate processes in place and that other staff members made errors which contributed to the issues. It noted as well that the Applicant was not in control of the Pharmacy processes. Nevertheless, it still concluded, in considering the Applicant’s involvement in dispensing the Prescription, that he “missed a number of opportunities to identify issues.” Once again, the evidence supports that conclusion.

[42] Finally, based on its reasons and as discussed above, I am satisfied that the ICRC took into account the Applicant’s defences as conveyed in his submissions.

The Remedial Measures

[43] The Applicant objects to the ICRC’s requirement that he receive an oral caution and take a course in medication safety. He submits that both are unduly severe in the circumstances, given that he has taken responsibility for his error in the September 16, 2018 refill. Further, because both the caution and the educational requirement are posted on the College’s website and made public, he submits the requirements amount to a penalty which is not warranted.

[44] Cautions and educational directions are remedial in nature and not sanctions or penalties. They are meant to improve the Member’s practice and benefit the public they serve by avoiding future concerns. See: Banner v. College of Physicians and Surgeons of Ontario, 2012 ONSC 5547 (Div. Ct.) at para. 11; Fielden v. Health Professions Appeal and Review Board, 2013 ONSC 4261 (Div. Ct.) at para. 10.

[45] The Applicant submits that the above decisions pre-date the 2017 change in the Code which requires that both cautions and required remediation programs be placed on the public record (ss. 23(2) 7 and 23(5)). He submits that change is sufficient to turn the remedial measures into a penalty or sanction. I disagree. The requirement of publication was implemented to provide transparency to the self regulation process. It was not intended to change the remedial purpose of a caution or required education. Nor has it. Given the ICRC’s role, both cautions and educational requirements remain remedial and do not amount to a penalty or sanction.

[46] Nor in the circumstances are the remedial measures imposed by the ICRC unduly harsh. While the Applicant acknowledged his error in respect of the September 16, 2018 refill and expressed remorse concerning it, he failed to recognise his other errors as identified by the ICRC. The remedial measures imposed by the ICRC will benefit both the Applicant’s practice and the public. They were neither an error in principle nor clearly unfit.

Conclusion

[47] For the above reasons, the application is dismissed.

[48] In accordance with the agreement of the parties, no order as to costs.

L. A. Pattillo J.

I agree _______________________________ Swinton J.

I agree _______________________________ Bloom J.

Released: March 15, 2021

CITATION: Longman v. Ontario College of Pharmacists, 2021 ONSC 1610

DIVISIONAL COURT FILE NO.: 20-211

DATE: 20210315

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SWINTON, PATTILLO and BLOOM JJ.

BETWEEN:

KEVIN LONGMAN Applicant

– and –

ONTARIO COLLEGE OF PHARMACISTS Respondent

REASONS FOR JUDGMENT

L.A.PATTILLO J.

Released: March 15, 2021