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Sonja W. Mast 8903957
Allegations and Plea
The College alleged that the Member performed controlled acts for which she was not authorized and, in particular, prescribed a controlled substance to a client; failed to keep records as required; and failed to cooperate with the Quality Assurance Committee. The College alleged that this conduct would be regarded as disgraceful, dishonourable or unprofessional.
The Member admitted to the allegations, and the College and the Member jointly submitted an agreement to the following facts.
The Member is a Nurse Practitioner (NP). Client A and Client B were the Member’s clients. Client A presented with dementia, lethargy and depression. Client B managed Client A’s needs. Client A was first prescribed testosterone gel by Dr. A. About a month later, the Member had an appointment with Client B and Client A was not in attendance at the appointment. During Client B’s appointment, the Member wrote a prescription for Client A for a controlled substance (Testim) that she was not authorized to prescribe. The Member did not conduct an assessment of Client A before prescribing Testim.
The Member failed to document the prescription in Client A’s chart. Despite having a scheduled appointment with Client B, the Member did not document that she had met with, assessed or treated Client B.
When the Member became aware that she was not authorized to prescribe testosterone, she notified the dispensing pharmacy and Dr. A about her inability to do so.
The Member was randomly selected to participate in Practice Assessment for 2010. The Member asked for a deferral, which was granted, and she was required to complete the QA Program in 2011. One year later, the Member was notified that she had been selected to participate in Practice Assessment for 2011. She failed to complete the process by the deadline provided. She was subsequently required to submit a learning plan and case example, and to speak to a practice consultant. She completed the requirements for 2011 and was reminded that she would be required to participate in Practice Assessment for 2012. A year later, the Member was notified of her requirements to complete Practice Assessment for 2012, and she did not comply.
The Panel found that the Member committed professional misconduct as alleged, and that the Member’s conduct would be regarded as unprofessional. The Panel viewed the Member’s conduct as a whole and while it acknowledged that simple errors in judgment may occur, consideration of all allegations taken together demonstrated a lack of regard for her professional obligations as a NP.
Submissions on Order
The College sought an oral reprimand and a five-month suspension. The Member would be required to complete specified remediation activities in preparation for a series of meetings with a nursing expert. For a period of 12 months from the date the Member’s suspension ends, the Member would be required to notify the Ministry and her mentor and her employers of the decision. The Member would be required to advise the College of her employers and her mentor. The Member would only practise for an employer who agreed to advise the College if the Member breached the standards of practice of the profession. The Member would enter into a mentoring relationship with a mentor who is approved by the College. The Mentor would conduct a chart audit, provide recommendations to the Member and provide a report to the College with respect to her practice. The Member would be required to participate in the College’s 2015 QA Program or next available cycle.
Counsel for the Member submitted that it was outside the Panel’s jurisdiction to order participation in the Quality Assurance Program. Independent Legal Counsel advised that the Panel had authority to make an order directing a Member to participate in the Quality Assurance Program.
The Panel ordered a three-month suspension and oral reprimand, and required the specified remediation, supervision and reporting as submitted by the College. The Panel decided that notification to the Ministry was unnecessary and did not reflect the spirit of panel orders. Adequate supervision and support upon the Member’s return to practice could be better provided directly through a mentoring agreement or employer. It would be appropriate for the Member’s collaborating physicians to act as a mentor, but if the collaborating physicians were unwilling or unable to fulfil this role, it would be more appropriate for the mentor-function to be supported by a member of this College. Both the Member and the public would be better served by having a mentor who is familiar with nursing standards.
In addition, the Panel ordered that the Member participate in the next cycle of the Quality Assurance Program. 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.
Decision on 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.