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HomeMy WebLinkAbout1993-2498.Leeder.95-10-06 DecisionONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL ONTARIO GRIEVANCE commission DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2700, TORONTO, ONTARIO. M5G 1z8 (4 16 326- 1388 180, 'RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO. M5G 1z8 416 326- 7396 GSB # 2498/93, 164/94, 296/94 OPSEU # 94B331, 94B628, 94B706 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN BEFORE OPSEU (Leeder) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer H. Finley J. Carruthers D. Clark Vice-Chairperson Member Member FOR THE M. McFadden GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE D. Strang EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING April 27, 1995 GSB 2498/93, 0 164/94, 0296/94 DECISION The Grievor, Barry Leeder, is a Registered Nurse, who, until his dismissal on March 30, 1994, was employed at the Brockville Psychiatric Hospital. He has filed four grievances. The parties agreed that three of the grievances were appropriate for consolidation and that they would be heard by this Panel, and that the fourth would be dealt with separately. The first dated, October 27, 1993 grieves that the letter dated October 5th, 1993 undersigned by R. Portuous [sic] and the conditions contained therein constitute unjust discipline. The Grievor asks 1) 2) 3) 4) [for] appropriate compensation. that said letter be removed from my Corporate File and any and all copies be returned to [him] to be destroyed. [that] the conditions contained in said letter be rescinded. that [he] be returned to [his] position on the Forensic Unit This grievance was in response to a disciplinary warning, and a disciplinary transfer. In the second grievance, dated March 30, 1994, he grieved that he had been dismissed without just cause and asked that he be immediately reinstated with no loss of pay, benefits or credits. The third grievance, dated April 5, 1994, alleged that he was being subjected to ongoing harassment by the Employer as represented by Linda Peever, Danny Seed and Richard Portieous, Dave Hunter, Ron Contant. In this grievance, Mr. Leeder asked 1) [that] this harassment cease and desist immediately 1 2) 3) 4) [for] Appropriate compensation. [for a Letter of apology from the Minister of Health [for] Any and all documentation relating to this matter be removed from [his] corporate file and returned to [him] to be destroyed The Union brought two preliminary motions with respect to these matters, the first for Interim Relief, was issued on the second, sought to have this Board bound by the earlier findings of an Unemployment Insurance Appeal Tribunal, was issued on ***, with reasons to be issued with the final decision. These reasons will be issued concurrently but separately from the decision on the grievances themselves. It will be necessary in this decision to refer to certain personal details of the Grievor. Also, we find that we must refer to two patients, both male, and must present some details about them. To protect their rights to privacy and confidentiality, the patient on the Forensic Ward will be referred to as Patient X, while the patient on the Gero-psychiatric Ward will be referred to as Patient Y. This is in conformity with the confidentiality requirements of the Mental Health Act. We shall also be using the following professional designations to refer to the Nursing Staff. RN Registered Nurse Reg. N. Registered Nurse RNA* Registered Nursing Assistant PNA* Practical Nursing Assistant RPN* Registered Practical Nurse *These three designations refer to the same level of nursing qualification but the terminology has changed over the past few years. The various designations are shown in the order in which they were applied and the current terminology in provincial psychiatric hospitals is the last - RPN. It was agreed by Counsel that when Mr. Leeder responded to questions concerning Exhibit 14, (the Seclusion Flowsheet), he did so under the protection of Section 9 of the Canada Evidence Act. 2 The Brockville Psychiatric Hospital is a general psychiatric hospital It houses, among other units, a medium-security forensic ward and 5 gero-psychiatric wards. The Forensic Ward, also known as Oxford 111, is located on the third floor; the Gero-psychiatric Ward in question is Ward 8. It is a chronic care ward and most patients leave only when they die. The management staff of the Hospital who are relevant to the instant grievances are: e David Hunter Hospital Administrator e Linda Peever, RN, BSc, MHA* Assistant Administrator of Patient Care Services; Acting Hospital Administrator in Administrator’s absence; Richard Portieous, Reg. N. * Nursing Coordinator e Danny Seed, Reg. N.* Nursing Coordinator e Jim Wilson, Reg. N. Unit Coordinator e Liz Zylstra Reg. N. Unit Coordinator [* Testified] Nursing Staff are governed by the College of Nurses of Ontario and are subject to professional standards set down and enforced by this body. At the Brockville Psychiatric Hospital, they are under the Nursing Department. The Nursing Staff of the Hospital is scheduled, for the most part, on two twelve-hours shifts. Days shifts are from 0700 hours to 1900 hours, and night shifts are from 1900 hours to 0700 hours. Responsibility for the individual wards on the day shift, is with a Head Nurse/Team Leader, who is assigned two wards. On the night shift, responsibility for individual wards is with a Charge Nurse, and rounds are made twice nightly by the Nursing Supervisors. Both of the incidents which are at issue took place on the night shift and therefore, for the purposes of this decision, the Panel will refer only to the night-shift protocol. The following Nursing Staff have relevance to the situations which are the subject of the grievances. e Linda Bellinger Reg. N. Acting Head Nurse e Glenda Ferguson RPN* RPN on Ward 8, Night Shift e John Fournier RPN* RPN on Forensic Ward, North End, Night Shift 3 Willie Heisel RPN RPN on Forensic Ward, South End , Medications Nurse on Nurse on Ward 8, Day Shift Nurse on Forensic Ward, South End, Night Shift September 10, 1993, from I900 to 0700 hours, Night Shift Rhonda Jansen Reg N* Kevin Latimer Reg N. * * Barry Leeder Reg. N. * Nurse, formerly on Forensic, Float Pool and Ward 8, Night Shifts Rob McDonnell Reg, N. Head Nurse on Forensic Ward Andrea Robertson RPN* RPN Ward 8 Debbie Steele Reg. N*. Diane Weatherdon Reg. N. * Head Nurse, Ward 8 Nurse on Ward 8, Day Shift Mr. Leeder is married and his spouse is employed in the Social Services field. They have two elementary school-aged children. He completed his qualifications as a Registered Nursing Assistant (RNA) in the spring of 1985, and in November of that year commenced his employment as an RNA at the Brockville Psychiatric Hospital on the Rehabilitation and Admissions Unit (Ward H), working first in Admissions and later in Rehabilitation. In November 1987, he obtained his nursing diploma and professional designation and was assigned to the Forensic Ward as a Registered Nurse (RN), he worked there until the fall of 1993 when, as the result of an incident which is the subject of one of the grievances, he was transferred out of the Forensic Ward into the Float Pool. In March 1994, he was reassigned from the Float Pool to Ward 8, one of the gero-psychiatric wards. Mr. Leeder had not been the subject of any discipline from 1985 to October, 1993. His 1993 Performance Appraisal, was carried out by Rob McDonnell, Reg N. , Head Nurse on the Forensic Ward on July 21, 1993. In it , Mr. McDonnell noted that Barry continues to complete patient assessments at a satisfactory level. Evaluation of patient care is completed on a regular basis. Barry completes summaries and care plan review which require occasional supervision Nursing records are maintained at a satisfactory level, occasional supervision is required. 4 Barry continues to function at a satisfactory level as a Reg. N. 2 on Forensic Service. Days absent due to illness from Mar 92-Mar 93: 13 - 12 hour days. The scoring on the Performance Appraisal is from one to six, three being “Performs satisfactorily; requires periodic supervision and/or assistance “, four being “performs satisfactorily without supervision”. Mr. Leeder was scored on twenty-six items and received three twice and four , twenty-four times. Two separate incidents, the first on the Forensic Ward, the second on a gero-psychiatric, and the fall-out from these, sparked these grievances and they will be dealt with separately in this decision. Further, it is the intention of the Board to deal with the evidence in some detail, since it is of the opinion that a thorough review and a detailed analysis of the evidence concerning the incidents themselves and the processes which followed are required. FORENSIC WARD INCIDENT - SEPTEMBER 10, 1993 The Forensic Ward is a medium security ward located on the third floor of the Brockville Psychiatric Hospital. It houses patients from Oakridge, at Penetanguishene, from the Courts on remand and for five to thirty day assessments, and from the Ottawa Detention Centre. Aggressive behaviour is not unusual and escapes, attempted escapes and hostage takings have occurred, although rarely. The frequent change in the patient group means that the staff is often dealing with unpredictable behaviours. The Ward consists of two separate areas - the North End and the South End. The North End is the assessment unit, and is the more secure of the two sections. It houses ten patients. The South End houses the control room for both sections and medications and nourishments are handled from this end. It is the North End which is the location of this incident. Each end houses a Nursing Office which faces on to the corridor but which is inaccessible to patients. The top half of the wall of the Nursing Office is glass and if you look up, you would have, from the North End 5 Nursing Office, a clear view of the male patient bathroom door area. Staff in the Nursing Station can be seen by anyone in the hall and patients communicate with Staff through a sliding window or come to the door which is a half-door so that the top section is often left open. Patient accommodation consists of several two-bed rooms, one single-bed room, and two seclusion rooms. There is also an area for television watching, a separate smoking area, and a male and a female bathroom, each with a separate bath/shower area. The doors at the entrance to the bathrooms are equipped with closures and can be propped open. divided into two sections, separated by a door, each with its own lighting. The first section has toilets, sinks and a window; the second, showers, a tub and a window. These particular facilities are The Forensic Ward is monitored by security cameras controlled from the central control room in the South End. There are locked entrances and exits and controlled doors separating the two ends which are controlled from the South End control room, as well as a controlled access elevator. There is a flow of information between the two ends, and staff care equipped with personal alerts and have intercoms available to contact the control room. Because of the level of security required and the particular clientele served, certain restrictions are in place as part of the daily routine. Many of the restrictions are designed to eliminate potential weapons. There are rules which restrict clothing, toiletries, and individual televisions and radios. Patients are free to move about the Ward unless they are confined to seclusion under a physician’s order, and it is usual for there to be constant coming and going in and out of the bathrooms, particularly just prior to bedtime, that is from 2200 hours to 2300 hours. Patients are prohibited from entering certain areas, such as the serving area in the South End where nourishment is prepared for both ends and the nursing stations While all Nursing Staff assigned to locked wards at the Hospital have a custodial aspect to their duties, that aspect takes on greater significance on the Forensic Ward and includes a security component. Observation and reporting of patient conditions and behaviours is an important part of the nursing routine here. Notes are made during each shift on each patient by both the RNs and the RPNs. It is frequently required that one of the Nursing Staff be assigned to the Seclusion 6 Monitors located in the nursing stations * * * in order that the behaviour and well-being of those patients who are confined to a seclusion room on the order of a physician, be regularly monitored. This procedure requires an ongoing visual check of the monitor(s) and a signed recording of patient condition on the Seclusion Flowsheet, every fifteen minutes as well as an hourly Progress Note. The individual who has this assignment is confined to the nursing station unless he or she hands the assignment over to another member of the Nursing Staff. During this time, the other staff person is normally out having contact with patients and observing them, seeing to their needs and checking behaviours. It is normal practice on the night shift to assign a Charge Nurse (RN) to each end, and an RPN to each end. One of the RPNs acts as the Medications Nurse, the other dispenses nutritional snacks and in these capacities, they service both ends of the Ward. Four members of the Nursing Staff were assigned to the Forensic Ward from 1900 to 0700 hours on September 10/11, 1993. Assigned to the South End were Kevin Latimer, as Charge Nurse of that end, and Willie Heisel as RPN. Ms. Heisel was also the Medications Nurse that night. Kevin Latimer testified that on the night of September 10, 1989, he was in charge of the South End which meant that he was really*** “in control”. He stated that sometimes, if only one RN is assigned to the Forensic Ward he functions as Charge Nurse in both. In his role as south end Charge Nurse he assigns staff to nourishment rounds, and canteen runs, reports to the Nursing Office in the morning, does the count and completes the census sheet in the evening. He sees to the general running of the ward and deals with any problems which might arise. Mr. Latimer explained that as a Charge Nurse, RPNs report directly to him and he has the ultimate say up to the level of his supervisor. Assigned to the North End, were Barry Leeder as Charge Nurse of that end and John Fournier as RPN. Barry Leeder testified that he considered Kevin Latimer as being in “overall charge”. Three of the four Nursing Staff testified to the events of that evening: John Fournier, Kevin Latimer and Barry Leeder. Mr. Fournier has worked in a psychiatric hospital as a Registered Practical Nurse for fifteen years.. For the past five years, he has been at the Brockville Psychiatric Hospital assigned to the Forensic Ward. Kevin Latimer is a Registered Nurse who 7 began to work at the Brockville Psychiatric Hospital in July 1989, and who was assigned to the Forensic Ward in November of that same year He had previously been a Residential Counsellor at Rideau Regional Centre. Barry Leeder worked at the Brockville Psychiatric Hospital from 1985 to 1987 as an RNA and from November 1987 to the fall of 1993, the time of the incident in question on the Forensic Ward. He then worked as an RN in the Float Pool and on a gero- psychiatric ward until the time of his dismissal on March 30, 1994. Willie Heisel was not called to testify, nor was she part of the investigation, although she had dealt with the particular patient (Patient X) who is central to this incident, during the same shift and had observed and charted his behaviour. The recollections of these three individuals of the events are detailed below, following a setting out of the conduct and attitudes of Patient X, since his arrival on the Ward. Patient X Patient X, the evidence showed, was a recent, new arrival, who was on the North End Assessment Unit from September 8/9, 1993, until his removal, under arrest on September 11, 1993, at 0500 hours. Although Nursing Staff did not know him well, he was a concern because of his behaviour as is shown in the Progress Notes made during his brief stay. He had also tested HIV positive which gave the Nursing Staff some concern. These Progress Notes provide an understanding of this patient’s behaviour and for that reason, they are included. Mr. Leeder was the only author of Patient X’s Progress Notes to testify. The following entries were made on Patient X’s Progress Notes : Re September 9,1993: 0630 D/ Spent last evening in company of female co-pt. Slept all night after receiving repeat Restoril . D. Thubron ***Reg. N. 1030 - Recieved [sic] a phone call from [Patient X’s] mother, a Mrs XXX. She wanted staff to tell her son to stop calling her - he was yelling @ her - very abusively - she was very upset - he was using manipulation - blaming her for his 8 problems now. Mrs. XXX was advised that he was calling collect - Staff could empathize but when she heard the operators [sic] voice she should immediately hang up. Pt is not aware of phone call. She also stated her son has called up her mother (who resides with her) and claimed he was going to commit [sic] suicide. She also stated he has been in *** Psych and *** Centre for help. D. Vallentgoed RNA 201 5 (late note) Came to nursing station, belligerent, hostile, demanding that staff let his girlfriend in to visit as she had been waiting for some time at door . During visit he would not take direction, had to be repeatedly reminded of no contact rule, challenging, superior [sic] angry, unpredictable. Recommend discontinue visiting privilege. Barry Leeder, Reg. N. Re September 10,1993: 0630 D/ Pt. Received a visit from his wife at 2015 hrs. Visit lasted till 2100 hrs. Demanding of staff at times during evening visit. Asking staff if his assessment will be extended and was encouraged to talk to day staff about his questions. Settled at 2300 hours and slept. C. Johnson RN 09900 Spoke with Dr. McFeely about this pts behavior [sic] * * * last evening, yesterday etc. Night staff reported of pt’s very difficult behavior - Staff even considered x 2 - ending of visit due to pts and wife behavior. Pt con’t to display hostility - negative attitude - challenging with staff This staff spoke to Dr. McFeely about this pt and Dr. McFeely decided to D/C pt visitor privilege. Dr. McFeely relayed that pt. was not co-operating with assessment and would be returning as designated by Court Order. Dr. McFeely also felt @ this time that pt likely would not return. D. Vallentgoed RNA 1900 D Dr. McFeely spoke with [Patient XI about D/C his wife’s visits, accepted after discussion with doctor. dir**t the ward - mood euthymic affect - broad - took all meals well. K. Dinsey - Read RN 18 15 (D) Requested and received in PRN [medication as needed] of Tylenol plain 650 mg po at 1045 hrs for c/o headache. No hrther complaints raised throughout day - PRN effective N. Nyerkley RNA 1845 D Tylenol 650 PRN ** for migraine O Needs analgesic p Chart & **** ****** Illegible 9 21 40 Pt. confronted staff demanding his regular nightime [sic] medication. Was told his night medication was only if he was unable to sleep without it. Claims he got it every other night as a regular medication. This staff told him that he didn’t get it last night. Became very hostile and asked if staff was calling him a liar and stated that it takes at least an hour to an hour and a half for medication to have effect. Restoril 30 rng PO PRN given at this time - 2140 Monitor for effect. W. Heisel RNA 23 10 At 2030 hours received call from his girlfriend. He then began going in and out of washroom, also coming to nursing station to report and update progress on bowel problems and hemorrhoids. At about 2200 hours he came to report that he gave himself a soap suds enema. This caused his hemorrhoids to bleed. He stated that we were out of towels and that he would like a sheet to clean up. At this time 2300 hours staff found broken window in shower area of bathroom, frame had been pried with solid object and a rope made of cut and tied together sheets had been lowered out of a hole cut in screen. Staff pulled rope up to find a bar of soap tied to the end to weigh it down. He later asked staff if staff felt he did this and requested PRN sedation to sleep. Barry Leeder, Reg. N. Re September 11,1993: 0430 Discharged to the custody of two O.P.P. officers. Charged with attempted escape, returned to *** jail awaiting transfer to *** courts. Angry, complaintive, threatening during discharge proceedure [sic]. Barry Leeder Reg. N. Mr. Leeder testified that the fact that this patient might be an escape risk had not been brought to his attention. Mr. Fournier testified that they learned later that the patient had “a jail house upbringing” and would have been experienced enough to create diversionary activity to take the focus off the bathroom. However, that was not information which they had at the time. Mr. Fournier testified that, although the staff was aware that this patient was anti-social and difficult to handle, before 2200 hours there were no suspicions that the patient was involved in an escape attempt. From 1900 to 2200 Hours on September 10, 1993 Jean Fournier’s Testimony 10 Mr. Fournier testified that prior to 2200 hours most patients are in the living room where the television is located or are in the smoking room. On the night of September 10, 1993, he was, he said, on the Seclusion Monitors from I900 to 2200 hours and did not leave the North End Nursing Office for a break or for any other reason during that time. During that time, Barry Leeder was sometimes in the Nursing Station and sometimes at the South End. While Mr. Fournier was in the Nursing Station Patient X came up two or three times, and on one of these occasions, requested towels “for a shower” and was told by Mr. Fournier that he was not able to leave his post. It is Mr. Fournier’s recollection that fiom what the patient replied, the patient was well aware of that. The patient did not indicate that bleeding was a problem for him, nor did he apprise Mr. Fournier of any other form of distress. Mr. Fournier agreed in cross-examination that certain patients in the psychiatric setting will seek attention and that they often say things which are not true, including remarks about themselves and their medical condition. Mr. Fournier commented that once one becomes familiar with a patient that it is not difficult to recognize the “tall tales” Newer staff members can be easily led but one learns, with experience to pick out certain types of behaviour and personality. On occasion, one can be mistaken, as there is always, he explained, the exception. Barry Leeder’s Testimony Patient X had a telephone call from his girlfiend at approximately 2030 hours. During the time that Mr. Leeder was in the North End Nursing Station, he recalled, Patient X came to the Nursing Station and “informed [him] that he was having some bowel difficulties” and “mentioned having some constipation”. However, in Mr. Leeder’s professional opinion, “a lot of his description didn’t coincide with constipation”, even though he said that he was “having difficulty going”. Patient X asked “how a doctor would deal with that and what [he] thought was causing it.” Mr Leeder testified that Patient X talked about “all sorts of things not related to that” as well Further, Patient X was, in Mr. Leeder’s opinion, calm and did not appear distressed or alarmed HIS tone was conversational and Mr. Leeder was left with the impression that Patient X was seeking information and he did not recommend anything at that time about bowels 11 Progress Notes Ms. Heisel dealt with Patient X in her role as Medications Nurse at 2145 hours, and that is reported in the Progress Notes above. Between 2200 Hours and Mr. Fournier’s Discovery Jean Fournier’s Testimony At 2200 hours, Mr. Fournier finished his assignment on the Seclusion Monitors and began his normal pre-bedtime-rounds routine by locking the two telephones rooms and then preparing the night nourishment in the South End for the patients on both ends. The latter activity consumed approximately fifteen to twenty minutes. Following the nourishment preparation and distribution, he did a walk-around observation check of patients, noting their behaviours, then beginning the general bed-time lock-up. At this time, he explained, there is considerable patient activity. Patients are moving back and forth as they are going to the toilet and to the bathroom to brush their teeth in preparation for bed. While doing his rounds this night, which he commenced well before 2300 hours, he began, as usual, by checking the bedrooms, then the smoking and television areas. It was usual for him during this round to hear a lot of concerns voiced by the patients, and he did not recall that this evening was any different in this respect. Barry Leeder’s Testimony Mr. Leeder took over from Mr. Fournier at the Seclusion Monitor at 2200 hours. That meant that he was confined to the North End Nursing Station and was alone, as John Fournier was at the South End taking care of the nourishments and then doing his rounds. Mr Leeder did not observe Patient X going in and out of the washroom during this period. Patient X came to the North End Nursing Station two or three times after 2200 hours. He then talked, among other things, about having given himself a soap suds enema with a shampoo bottle. Mr. Leeder’s assessment of this, after he considered the shape of the shampoo bottle which was available on the Ward and which Patient X did not produce, in relation to normal anatomy, was that “it was just too bizarre”. He was of the opinion that what Patient X said was “inconsistent He recalled that 12 with the truth” Patient X mentioned as well, that as a result of this activity he had aggravated his hemorroids and caused some bleeding which he “wanted to wash up”, and that since the Ward was out of towels he would use a sheet. He did not say where he would get the sheet, nor did Mr Leeder ask Mr Leeder explained to the Panel that when there were no towels, that sheets were often used in their place, and given that Patient X required a towel, he was not going to stop him from using a substitute. Mr Leeder was asked by Mr. Strang why he would not call down to the other end for a towel and Mr Leeder replied that he would not call for someone to come to the North End with one towel. He was then asked what he would then do with the “AIDS-contaminated” sheet, to which he replied that it would go into the laundry hamper and he would, if need be, collect it later. [Note: there was no evidence that Patient X suffered from AIDS.] As for the patient taking a sheet from someone else’s bed, Mr Leeder testified that on the Forensic Ward, this happens and that he did not have a problem with that. Mr. Leeder stressed during his cross examination that Patient X said that “he wanted to wash up” not that he was going to mop up voluminous amounts of blood”. During this conversation, Mr. Leeder was sitting in the Nursing Station just behind the glass, three to four feet from Patient X and from there had a clear view of him. According to Mr. Leeder, the patient did not appear in any distress nor did he display any of the indicators of haemorrhaging such as obvious blood, pallor, or disorientation. He did not mention blood in the bathroom. profusely, nor had he claimed that he was. He had stated, according to Mr. Leeder, that he was “bleeding a little’. He had had no change in demeanour before and after 2200 hours. Mr. Leeder concluded from his observations that Patient X was in no danger. In his opinion, there was no need for him to call for assistance at that point in time. Patient X was not bleeding Kevin Latimer’s Testimony On the night in question, Mr. Latimer testified, he had come down to the North End Nursing Office to pick up the census sheet at 2230 hours. At that point in time, Barry Leeder was in the Nursing Office, engaged in seclusion monitoring. They had a discussion about ordering pizza for their meal, which was not an unusual occurrence. 13 From the Time of Mr. Fournier’s Entry into the Male Bathroom to 0500 hours John Fournier’s Testimony Mr. Fournier testified that at approximately 2300 hours at the end of his rounds, he opened the door and went into the male bathroom and observed that the tub and shower area door was open, (although in cross examination he referred to opening it) and that the area was dark He had moved from the lit hallway to the darkened tub/shower area and was “momentarily blinded” due to the light adjustment. He testified that when he looked at the window, he observed a silhouette and at that moment, that person, a patient, jumped from the ”window ledge” and landed in front of him so that they were “eyeball to eyeball ” By then, Mr. Fournier could see well enough to see that there was damage and he tried to turn the lights on, but was unable to do so as, he concluded, the patient had tampered with the lights It was at that point, he believes, the patient realized that he was aware that “something was going on Mr Fournier testified that he observed the window frame was “bent open and taken out and the patient commented that he had just come in and found it this way Mr. Fournier testified that he asked the patient to leave and reported the incident to Barry Leeder and Kevin Latimer who were together in the North End Nursing Office He recounted that they got a flashlight and the three of them went to the tub/shower area to “have a look around” He observed that one window had been smashed out and another had been taken out and put in the shower He noted that there was blood on the wall, “not a big volume”, smeared, it appeared, by fingers There was more blood noted on a sheet in the laundry hamper The sheet had a stain about fifteen inches in diameter of, according to Mr Fournier, blood mixed with water He stated that at first, they thought it was a lot but then concluded that it was mixed with water He could not, he explained, determine where the blood came from Me considered the possibility that the patient might have cut himself while smashing the window They then did a strip search of the patient and observed no cuts Mr Fournier testified that he was not aware of an anal examination and the only knowledge that he had of the rectal bleeding was Barry Leeder’s statement that the patient had been bleeding from hemorroids and that he had come to him several times while he was on seclusion duty at the monitors Mr Fournier testified that Mr Leeder told them that the patient asked for towels for the shower but 14 that he said that he could not leave his post. The group then noticed that there was “shredded bed linen” out of which the patient had made a rope. On pulling it up they found it was weighted with a bar of soap. It had been put through a hole in the security screen which was there from a previous escape attempt two months earlier. The hole, which had been the size of a quarter, had been enlarged until it was between three and four inches across. Mr. Fournier went on to recount that they noticed a car on the outside which was “signalling to the third floor with lights on and off’ and “people in the car were whispering”. According to Mr. Fournier, the Forensic Ward was quite restless at that period as there were a number of anti-social patients on the Ward. One of the patients, a female, expressed concern about a weapon, stating initially that the patient who had been found in the tub/shower room had a gun, then stated that it was a tire iron, then a bar. no weapon was found. At that point, which was around 2300 hours, the female patient was advised to go back to bed. It was then that the Nursing Office was notified. The car which they had observed departed and returned four or five times and the individuals in it tried to whisper to the patient whom the Staff believed had attempted to escape. Mr. Fournier told the Panel that he went to the smoking area and put out the lights and tried to communicate with those in the car. He stated that A search was made of the bedroom area but We then searched down below and everytime we showed up, they would drive down Oxford Street to Power Street and then back. Mr. Fournier recounted that they checked the area for contraband and hid in the bushes. They then got in their, (he did not specify whose), vehicle and chased the car to get the licence number. They were later to discover that the car had been stolen from a car dealership in a town about thirty miles east of Brockville. The police were called and they came from Perth. They took some time to get there, according to Mr. Fournier. However Patient X was then removed from the Forensic Ward and taken to a custodial facility in the area. Mr. Fournier did not know precisely where. 15 It was Mr Fournier’s testimony, that in hindsight, the group believed that this patient was planning to escape and that he wanted to deter staff from entering the tub/shower area. He explained that as patients normally shower in the morning that “you do not usually go into it to check”. Further, the staff had only dealt with one other escape attempt in the past and were not, therefore, particularly familiar with jail house behaviour”. Mr. Fournier stated that the role of the Nursing Staff is to assess and meet the psychological and physical needs of the patients, not to act as guards. Kevin Latimer’s Testimony: Mr. Latimer submitted an Incident Report before leaving his shift. He testified that the report was a compendium of what he had observed personally and what he had heard from others. In writing an Incident Report, Mr. Latimer explained that if he knew something was a fact, he would not leave it out of his report simply because he had not observed it himself. Nor, he stated, would he report something to the Nursing Office that he found to be totally false or which had no basis in fact. To do so would result in pages of false claims. Mr. Latimer testified that about thirty minutes after his arrival at the North End Nursing Station, John Fournier came into the Nursing Office from the male bathroom and reported that he had discovered a hole in the screen. This was the beginning of the incident with Patient X. Mr Latimer testified that he accompanied John Fournier back to the male bathroom. This was the first of two trips, he testified, that he made to the bathroom before it was locked. His testimony and his Incident Report combine to show the following observations made during the two trips by Kevin Latimer or John Fournier and Barry Leeder who might have spoken to him: e the fluorescent light was “smashed out”, the upper pane of glass had been removed from the window and was found in the shower The lower pane of glass was smashed. It was screwed shut. “The frame of the window had been pryed [sic] on with what looks to have been a there was some blood on the wall, a small amount, 2/3 fingers e area. e crowbar or a large screw driver.” e 16 there was some blood mixed with water on the floor, a bit blood on the window ledge blood on the sheet that was being used as a towel, not a great deal, a bit. the blood was bright red. a hole in the screen 2 1/2 to 3 inches in diameter a bed sheet torn into little strips and tied together to form a rope about 30 feet long, fed through the hole and lowered to the ground. On the initial trip blood was not noticeable at first glance, although he became aware of it shortly thereafter. Patient X was there, denying any involvement. The blood was of secondary concern, Mr. Latimer explained, as their first priority was the patient. They assumed that the blood was the result of Patient X having cut his hand on the broken glass of the window. They checked his hands but found no blood. Mr. Latimer then learned that Patient X had complained of rectal bleeding. There was, however, no sign of shock or bleeding, and if you had not heard about the complaint, he testified, you would not have noticed. On examination, Patient X had no cuts on his hands or feet. Mr. Latimer went on to testify that he thought perhaps the sheet had been used to bring something in for Patient X and he and Mr. Fournier did a strip search of Patient X right away in the bathroom and found nothing. Patient X then went off to the Nursing Office to tell his story before Mr. Fournier had an opportunity of doing so, according to Mr. Latimer. At this point, Mr. Latimer then went to the South End and requested the Nursing Office to notify the duty physician, stating that he felt that Patient X was a problem and that he should be moved to a jail setting. The Nursing Office then sent 2 or 3 staff to assist and by that time Patient X gave no trouble, and went to his room. Mr. Latimer testified that there was no need for staff to confront Patient X or to "wrestle him to the ground". They then locked the male bathroom and directed patients to use the female bathroom and undertook a check of Patient X's room but found nothing. Mr. Latimer and Mr. Fourier then returned to the male bathroom. Mr. Latimer was not able to remember whether or not Mr. Leeder was there at that point in time. He recalled that they pulled on "the rope" and determined that there was something on it and this object then came off. They discovered that it was a bar of soap. 17 Mr. Latimer testified that he and John Fournier did a perimeter check, thinking that something might be there The car that had been spotted kept coming back and stopping beside them. They, in their turn, drove around and got the licence number of the car involved and relayed it to the Nursing Office staff who in turn relayed it to the police. It took longer for the police to come than Mi. Latimer expected it would, and it was his observation that they were more concerned with the stolen car, than the patient problem, and it was 45 minutes before they appeared on the Ward. Mr. Latimer testified that following the incident, he, Barry Leeder, John Fournier and Willie Heisel, the medications nurse sat down and discussed it. He prepared his Incident Report which was entered as an exhibit, from notes he would have made close to the time. He wrote his report at approximately 0400 hours on September 11, 1993, and would have sent it over to the Nursing Office at 0630 hours. In it he states that Every 10 minutes or so [Patient X] would come to the office. He was complaining about his hemmroids [sic] acting up and they were bleeding. He said he was bleeding a lot and had used a sheet to soak it up off the floor. In cross examination Mr. Latimer indicated that he himself had not heard or observed these actions or comments which he put into his incident report. In fact, he does not recall having spoken to Patient X prior to contact with him at the time of the bathroom incident. He did, however, observe on the South End Control Room monitor, “one guy coming out of the bathroom more frequently than normal . . . although he could not see into the bathroom area”. He also observed the same individual, whom he identified as Patient X, between the hours of 1900 and 2300, go to the north window and bend down, and sometimes go into the bedroom, then come back in a few minutes. He did not share this information at the time. Mr. Latimer also testified that during the evening either John Fournier or Barry Leeder had asked for towels but that they were out of towels and so he gave, to whom he could not recall, 2 sheets. Running out of towels on the Forensic Ward, particularly on nights, is a usual occurrence, he explained. 18 Testimony of Barry Leeder Mr Leeder stated that until Mr. Fournier announced of the attempted escape, there was nothing unusual and patients were moving about the Ward, When Mr. Fournier announced the incident, Mr. Leeder testified that Mr. Latimer was present and it was he, who initiated action. It was Mr. Leeder’s recollection that Mr Latimer contacted the Nursing Office and they then went together to view the window. He recalls being present but was unable to recall whether Mr. Fournier was present at that particular time. Mr. Leeder was, he testified, in the washroom within 5 minutes of being informed of the incident. He had to turn over his Seclusion Monitoring duty to another staff member, and Willie Heisel took it on. Mr Leeder testified that Mr. Latimer, Mr. Fournier and Patient X were in the male bathroom. Patient X was giving possible reasons for the condition of the window, reasons which, in Mr. Leeder’s opinion, were an attempt to free him from any responsibility. Mr. Leeder testified that he asked Patient X to leave the area which he did, and then he, Mr. Leeder, went into the shower area. and a window, the lights were on; in the second section containing the showers, a tub and a window, the lights were off A flashlight was produced, and he and his two colleagues inspected the damage to the window frame and tried to ascertain why the lights were out and could find no obvious reason for the failure of the switch to work. Some blood smears were observed on the walls and Mr. Leeder testified that he saw “a drop of blood on the window sill of the toilet section”, which was not the forced window. In cross examination Mr. Leeder testified that following this survey of the area, he requested Patient X to come back to the privacy of the bathroom and he and Kevin Latimer inspected him - hands, elbows, knees, feet and buttocks- and found no cuts or signs of trauma. In a search for the source of the blood, he and Mr. Latimer inspected other patients until one of the patients confirmed that the patient who had tried to escape had been cleaning himself. By this time, Mr Leeder testified, replacement staff had arrived and Kevin Latimer left to undertake other duties. About ten or fifteen minutes later, he, along with Kevin Latimer, inspected Patient X’s anal area and discovered nothing unusual. They Mr. Leeder observed that in the first section, which contains toilets, sinks 19 observed “no cuts, no redden area, nor any swelling” In cross-examination, Mr. Leeder was questioned about his charting of Patient X’s behaviour and the incident on the evening of September 10, 1995. He stated that he charted incidents which occurred at 2030 and 2200 hours, at 23 10. He noted that he did not chart the escape attempt itself because he had not discovered it and he expected that John Fournier, who had made the initial observation would do so. He pointed out that when there are unusual occurrences, Nursing Staff write up Incident Reports, and he did complete one of these, as did John Fournier and Kevin Latimer. As mentioned above, Mr. Leeder turned over his Seclusion Monitoring to “the person at the other end of the ward in the Control Room”, Ms. Heisel, to cover for him. She agreed to assume this responsibility. However, her name was not recorded on the Seclusion Flowsheet, as Mr. Leeder signed his name for the period. He acknowledged this at the hearing and agreed that charting should not be done by an individual who has not observed what s/he has signed as having observed. He acknowledged that his action in this regard was clearly wrong. Bleeding All three members of the Nursing Staff were asked how they would respond to a complaint of hemorroidal bleeding. Mr. Fournier stated that one would first do a visual assessment, and look for signs of blood. If a patient stated that he was having problems with hemorroids he would look at skin colour. He would expect hemorroidal bleeding to be light unless a patient stated that he was really bleeding. He stated that if someone asked for a suppository he would check because he would need to get an order. It is necessary, he explained, to decide if the patient is suffering from fact or delusion. If everything else was normal and no blood was visible, he would check further and check the hemorroids. If he discovered something to report, he would report to the nurse in charge who would report to the Nursing Office and it was his understanding that Nursing Staff would only call the doctor, if the condition was really bad or discomfort was extreme. He explained that he had dealt with this situation several times 20 prior to September 1993 Kevin Latimer testified that in the event of bleeding he would check the patient for colour, blood pressure and temperature, and actual bleeding and if he found bleeding he would notify the Nursing Office. He acknowledged that there was a difference between “bleeding” and “haemorrhaging” and, in cross examination agreed that if he observed no signs of shock, pallor or shortness of breath, and if the patient seemed fine, that he saw no need to notify the Nursing Office if the assessment showed no signs of bleeding. He explained that each patient is different and that also in a psychiatric setting some patients would be telling you things which had no basis in fact. If a member of the Nursing Staff is going to report something to Nursing Office, one should check before doing so and an examination, in this case, of the rectal area carried out in the bathroom or in the examining room, would have established the fact or non-existence of bleeding. Mr. Latimer testified that the fact a patient was HIV positive could render the situation more urgent, but would not change the professional approach since Staff treat every body fluid as if it is contaminated. As for charting the bleeding, Mr. Latimer stated that the note on the chart should be made by the Nursing Staff member who noticed it, because first hand information is preferable to information which is second- or third-hand. He testified that “RNs and PNAs” are both expected to chart their own observations equally, on a patient’s file, given that both are professional enough to make their own observations and to record them. In the event that the information on a chart is second-hand, the initials of the person who had reported the observation would be noted on the chart. Mr. Leeder testified that prior to 2200 hours on the night of September 10, 1993, Patient X mentioned “constipation” and “having some bowel difficulties”. He came to the Nursing Station 2/3 times after 2200 hours when Mr. Leeder was on the Seclusion Monitors and on one of the occasions mentioned, among other things, that he had “aggravated his hemorrhoids”, that he was “bleeding a little” and wanted to wash up. Mr. Leeder assessed for blood, pallor and 21 disorientation and concluded Patient X was in no danger and was seeking attention. Mr. Leeder was asked in re-examination about the handling of HIV positive patients. He testified that he was not aware of a quarantine policy at Brockville Psychiatric Hospital, nor was he aware of a particular “wash-up” protocol which staff were required to follow when attending a patient with HIV. He testified further, that he had never attended a Health and Safety meeting at which this topic was discussed. Enema Mr. Fournier testified with respect to the procedure for enemas. First of all, he stated that he was not aware of any enema report on the night of September 10, 1993. He explained that enemas are not self-administered and that he was not aware of any fleet or flow enemas on the unit. Mr. Leeder testified when Patient X talked about giving himself a soap suds enema with a shampoo bottle, that he did not believe him, considering the statement too bizarre when one considered the shape of the neck of the bottle of shampoo which is provided on the Ward. Mr Leeder did not consider that “it would be very friendly with the anus.” The Aftermath Richard Portieous, the Nursing Coordinator was responsible for all wards and programs in September 1993 due to the illness of another coordinator. He testified that at the time of the hearing he had been a Registered Nurse for twenty-three years and at Brockville Psychiatric Hospital for twenty-one of those years, and during that time, he was involved in one previous investigation regarding “leave without authorization”. Mr. Portieous was not present in the Hospital, the night of the incident. The report that Mi-. Portieous prepared regarding the incident was done at the request of Linda Peever, the Assistant Administrator of Patient Care Services. She requested that he (a) investigate the incident, (b) report the facts and (c) make recommendations. The investigation process consisted of the following: 1. A request for written Incident Reports from John Fournier, Kevin Latimer and Barry Leeder 22 2. 3. A review of the reports from them An interview with Jean Fournier (September 15, 1993) An interview with Kevin Latimer (September 15, 1993) An interview with Barry Leeder (September 16, 1993) with Ron Contant, Security A conversation with Lynda Bellinger, Acting Head Nurse. An audit of Patient X’s Chart/Progress Notes 4. Mr. Leeder’s interview was held on September 16, 1993, and it was his understanding that this was not to be a disciplinary meeting but a means of collecting data to ascertain what occurred on the night of September 10, 1993. Mr. Portieous testified that he “did not have the possibility of discipline in [his] mind,” and discipline was not part of the instructions he received from Linda Peever. Ron Contant, in his capacity as newly appointed Environment and Security Coordinator, attended, arriving part way through the interview. Mr. Leeder, according to Mr. Portieous, did not object “to his sitting in.” Mr. Leeder testified that Mr. Contant’s arrival signalled a change in Mr. Portieous’ tone and demeanour; it changed from friendly and professional to judgemental and accusatory. Mr. Leeder testified that at the point at which Mr. Portieous stated that in his opinion, he had made poor choices, Mr. Leeder explained that he said he could see where the meeting was going and that He did not, therefore, attend with union representation. perhaps he should get a union representative. Mr. Portieous replied that there was no need to do so but that Mr. Leeder certainly had that right. It was his impression that disciplinary action was going to result from his interview with Mr. Portieous, who had challenged his judgement. Mr. Leeder testified that Mr. Portieous stated that if there were further “action”, that he might be reported to the College of Nurses. Mr. Leeder took this statement to mean that if he grieved he would be reported to the College of Nurses, and he felt threatened. He now realizes, he testified, that “action” could have meant disciplinary action; in other words, if he were disciplined over some future incident. Mr. Leeder testified that he believed that his actions were appropriate and felt that he might have to challenge disciplinary action, and recalled that he told Mr. Portieous that. At the time of the hearing Mr. Leeder was still of the opinion that Patient X was not seeking any medical assistance 23 Mr. Portieous stated that at his interview with Mr. Leeder he had three concerns: ( 1 ) “the escape” (2) the fact that the patient had rectal bleeding and had given himself an enema (3) the fact that the patient used and looked for a sheet to clean up. According to Mr. Portieous, there was contaminated blood on the Ward and the information about this was not given to Staff until later that evening. Further, there was enough bleeding to be wiped up with a sheet. The amount of blood, he testified, could have been large, and should have been investigated Mr. Portieous stated that he would have expected Mr. Leeder to investigate the blood loss, the site and size of it, and take the patient’s vital signs to check for change He should also have notified the Nursing Office so that the doctor could have been contacted and have notified other Staff. He was bothered by the fact that Mr. Leeder took the position that there “was nothing wrong with his assessment”, and also by Mi. Leeder’s attitude to the patient’s use of a sheet for a towel and his failure to determine the source of the sheet. He testified as well that Mr Fournier and Mr. Latimer were disciplined because of security and what went on that night”. Mr. Portieous testified that he completed his “factual enquiry” on September 16, 1993, prepared a draft report, and discussed it with Ms. Peever. As a result of their discussion, several changes were made and it was given to Ms. Peever’s secretary to type. When it was returned to him on September 30, 1993, he read and signed it. In cross examination, Mr. Portieous acknowledged that conclusions based on facts found to be flawed may, themselves, be flawed. He also agreed that nowhere on the record, does it say that there were “numerous complaints of bleeding” and further, that it is not fair to say that Mr. Leeder did not assess the patient. Following the investigation, non-disciplinary letters of counsel were issued to John Fournier and Kevin Latimer. Mr. Latimer’s letter was presented in evidence and it is quoted in 24 full here so that its tone can be compared with the tone of the letter sent to Barry Leeder: October 5, 1993 TO: Mr. Kevin Latimer Oxford III FROM: Mr. Richard Portieous, Reg.N., Nursing Co-ordinator. Incident - September 10, 1993 RE: On October 12, [sic] 1993, we had a discussion regarding the incident on Oxford III North of September 10, 1993. I feel obligated to counsel you that your actions, specifically leaving the ward to search outside property, placed yourself and the Unit at risk. While I appreciate the fact that you felt you were acting in the best interests of the hospital and the Forensic Service, I must point out that by doing so you placed yourself at personal risk and increased the risk factor on the unit by your absence. In future, in such a situation, it would be expected that you would notify appropriate nursing manager and take direction on how to proceed. This is a non-disciplinary letter of counselling and will not be placed on your corporate file. Signed R. Portieous Mr. Portieous testified that Mr. Fournier and Mr. Latimer were "talked to" and received letters of counsel for one year. However, the letter entered in evidence does not mention a year, in fact, it states that the letter would not be put in the Corporate File. Mr. Leeder's letter of reprimand concerning this incident was dated October 5, 1993, and reads as follows: TO: Mr. Barry Leeder, Reg.N., 25 FROM: Mr. Richard Portieous, Reg. N , Nursing Co-ordinator, RE: September 10, 1993 Incident As stated to you at our meeting of October 5, 1993, this letter of reprimand regarding your conduct on September 10, 1993 is being placed on your corporate file. I have investigated the incident occuring [sic] on Oxford III North on September 10, 1993 and have met and interviewed yourself and other staff involved in the incident, as well as the acting Hed [sic] Nurse, and also reviewed the written reports of the incident, as well as the patient’s file. During the individual interviews, I had each staff review the incident and their part in it in their own words. By comparing this to their written statements, I asked questions for clarification in certain areas regarding the incident. The incident reports and interview left major descrepancies [sic] that caused me grave concern as a manager, as a professional and as a nurse. The written incident reports indicated the following: the patient’s complaint about his bleeding haemorrhoids, his need for a sheet to soak it up off the floor and the fact that he stated he had given himself a soap suds enema, when there is no equipment on the ward to do so, and that you were aware of all of the above. My professional concern as a nurse manager is that you, the charge nurse on Oxford III North, did not investigate the complaint of bleeding haemorrhoids or blood loss despite numerous complaints, nor did not take the patient’s vital signs, assess the client or determine if medical attention was required. You did not investigate patient giving self a soap suds enema, even though there is no equipment on the ward to do so. You did not communicate any of the above incidents/complaints with fellow staff members until after broken window was discovered. Your explanation and responses to the above concerns at the interview were unsatisfactory in such that: 1) You stated you believed the patient’s story at the time, but in hind sight realized he was lying. 2) In your opinion, this was not an emergency situation and did not 26 require investigation. 3) When asked about the patient using a sheet to wipe up the blood, you stated the patient only used sheet because towel was not available, but had no idea where patient got the sheet. 4) You saw nothing wrong with your actions and your assessment of the situation. When asked what was required to prevent the re-occurrence [sic] of this type ofincident, your response was more staff, and you had not further options to offer. You yourself indicated that it was pure luck that no one was hurt because of the incident and that in all likelihood, hostages could have been taken during the escape attempt. Your inaction and indifference in following up several complaints of patient physical discomfort and bleeding was not only unprofessional as a psychiatric nurse, but by having that information and not sharing it with your peers, you put them at risk in a dangerous situation with a dangerous felon. Your assessment skills were sadly lacking throughout this whole episode and made a dangerous situation worse. After having reviewed this incident several times as a professional nurse and as a manager, I find your inaction and abdication of leadership throughout this incident unconsciousable [sic] and unprofessionable [sic]. You are expected to utilize the skills and training you have received and make logical, careful decisions and assessments that mutually benefit patient and staff safety. You are hereby warned that any further incident of such a serious nature will lead to progressive disciplinary action being taken and may be reported to the College of Nurses of Ontario for review. In spite of the notice to Mr. Leeder that “any further incident.. may be reported to the College Nurses, which would indicate that this particular incident would not be reported, this matter was nevertheless, reported to the College of Nurses following the March incident. There was no evidence that Mr. Leeder was informed of this prior to the submission to the College. That portion of the report is set out below: A forensic patient approached B. Leeder, charge Nurse, at or about 2230 hours 27 several times (at approximately 10-minute intervals) to complain of bleeding hemorrhoids. He informed B. Leeder that he was bleeding profusely and had used a sheet to mop up the blood from the Boor. At one point, he reported that he had self-administered a soap suds enema. The registrant did not investigate the patient’s complaint of bleeding hemorrhoids or blood loss despite numerous complaints, did not take the client’s vital signs, assess the client or determine if medical attention was required. He did not investigate the patients report that he had administered a soap suds enema despite the fact that there no equipment of this nature on the ward. It is believed that the patient was making these frequent trips to the nursing station to avoid his attempts to damage a window to either escape or bring in a weapon from being discovered. At approximately 2300 hours, another staff member while making rounds (e.g. locking washroom) discussed [discovered] the patient standing on the tub at the window. The light bulb had been broken so the shower room was in darkness, the glass in the window had been broken (upper pane removed, lower pane smashed) and the screen had a 2 1/2 - 3- inch hole in diameter. The frame of the window had been pried with what is believed to be a crowbar. Staff noticed that a couple of people (identities unknown) had been in communication with the forensic client, but were unable to detain them. Client was taken into custody by O.P.P. for attempt to escape. During a search the next morning, staff discovered a crowbar hidden in a chesterfield in a patient’s lounge. Due to the level of security maintained on this unit, it is believed that the crowbar was brought into the unit through the hole in the screen by the client. Police were informed of the discovery. Significant breech [sic] of security. Note: The registrant has not shared any of the information about the client’s complaints until after the discovery of the broken window, etc., Hospital Action: Written letter of reprimand and re-assignment off Forensic Unit On September 16, 1993, the day of Mr. Leeder’s meeting with Mr. Portieous, he also attended as a guest, along with Willie Heisel, an emergency meeting of the Security and Safety Protocol Committee, which was chaired by Ron Contant, Acting Chairman. Kevin Latimer also attended as a member of the committee as did Linda Bellinger, Acting Head Nurse on the night of 28 September 10, 1993. Drs. Tolentino and McFeely, were also in attendance. The minutes of the meeting show that During the course of the subsequent discussion several of the attendees expressed obvious frustration that recommendations which had been identified following previous incidents had not yet been attended to. Nonetheless, the committee made another list of recommendations, ten in number: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. That the lighting in the male shower room be affixed to the ceiling. That the minimum staff on nights be changed to 5 and the minimum on days be changed to 6. That Nursing Staff receive education on how better to deal with accused who have a ‘jailhouse” personality. That a recommendation be made to the Police Interface Committee re obtaining a standing Writ for removing these patients from the Hospital when they create problems. That the recommendation for a non-contact visiting room be followed through. That the Daily Walk-Around Security Check be implemented and problem areas be referred to R. Contant immediately. That consideration be given to installing a perimeter fence around the back wall and installing lights in this area. That consideration be given to maximizing Oxford 3 -North. That the hotel size small soap bars be used on the Forensic Service. That the Team Leader be given the discretion to nofity the police immediately when an incident develops. It is interesting to note that the second suggestion is the same as Barry Leeder’s sole suggestion at his meeting with Richard Portieous. Argument Mr. Strang submitted that Mr. Leeder had been indifferent and inactive with respect to the complaints of Patient X particularly to his complaint of bleeding which staff testified should not be ignored, that he failed to inform other staff about this bleeding. He stated that the reprimand was the lowest form of discipline and that the transfer, which could be considered disciplinary, would he hoped, cause Mr. Leeder to reflect. Both, he submitted, were entirely appropriate. He 29 also submitted that Mr Leeder’s signing of the Seclusion Flowsheet reflected badly on his credibility and as a result it would be “preposterous” to prefer Mr Leeder’s evidence to that of Mr. Portieous. Both Mr. Strang and Mr. Leeder made the point that, in the end, the source of the blood could not be determined. Mr. McFadden submitted that the allegations here are of the degree of seriousness to demand clear and cogent evidence as proof. He stated that the Grievor had spent six years of discipline-free time of the Forensic Ward and noted that his last Performance Appraisal was satisfactory and unchallenged. Mr. McFadden characterized Patient X’s reference to bowel problems as simply advising Mr. Leeder rather than submitting a complaint. The constipation mentioned by Patient X was, in Mr. McFadden’s words, an exceedingly common problem and likened it to a minor headache. He focussed on the terminology used around the ‘bleeding” noting that the testimony showed that Patient X stated that he was “bleeding a little from aggravated hemorrhoids” and that the term “rectal bleeding” was a term which the Employer used, as were Mr. Portieous’ terms of ‘‘profuse bleeding” and “pools of blood”. There are, Mr. McFadden submitted, no quarantine orders or special protocols for the washing up of blood from those testing positive to HIV. He went on to consider the conduct of the interview that Mr. Portieous had with Mr. Leeder and noted that Mr. Portieous was unhappy with Mr. Leeder’s lack of contrition. It is ironic, Mr. McFadden pointed out, that Mr. Leeder’s assessment for which he was criticized, was, in the end an accurate one. Decision Forensic Incident In his September 30, 1993 report, Mr. Portieous, the Nursing Coordinator who was assigned to investigate and provide a report to Ms. Linda Peever, the Assistant Administrator of Patient Care Services, accused Mr. Leeder of the following: failure to investigate the “so called bleeding haemorrhoids” 30 failure to investigate the “supposed blood loss” failure to take “the patients [sic] vital signs” failure to investigate the “patient giving self a soap suds enema even though there is no equipment on ward to do so” failure to communicate any of above incidents with fellow staff members until after broken window was discovered failure to enquire where the sheet used “to wipe up the blood” came from failure to determine that this incident was an emergency failure to determine that the incident needed investigation failure to see that his assessment was wrong failure to see that his actions were wrong failure to have more than a suggestion of increased staff as a prevention failure to share information with peers putting his peers at risk making a dangerous situation worse displaying a lack of nursing skills behaving defensively in his interview with Mr. Portieous trying to rationalize his actions as assessments failure to act on several complaints of patient physical discomfort indifference to several complaints of patient physical discomfort inaction displaying a lack of assessment skills throughout this whole episode unconscionable and unprofessional behaviour In his letter of reprimand to Mr. Leeder dated October 5, 1993, Mr. Portieous also accused Mr. Leeder of being aware of the patient’s need for sheet to soak the blood up off the floor failure to utilize his skills and training failure to make logical, careful decisions and assessments 31 In his testimony he further accused him of failure to report the incident to the Nursing Office when it happened failure to investigate the blood which could have been a large amount failure to inform staff about contaminated blood It was also put to Mr. Leeder by Counsel for the Employer, David Strang, that he had signed the Seclusion Flowsheet for the period of time when he was not doing the monitoring but had turned it over to Willie Heisel. Ms. Peever’s letter to the College of Nurses accused Mr. Leeder of e failure to investigate the patient’s numerous complaints of bleeding hemmorhoids when the patient had informed him that “he was bleeding profusely and had used a sheet to mop up the blood from the floor” e failure to investigate the patient’s blood loss failure to take the client’s vital signs failure to determine if medical attention was required failure to stop and investigate the patient’s report of a self-administered soap suds enema failure to share information of patient’s complaints until after the discovery of broken a significant breach of security e failure to assess the client e e e window e For the above reasons, Mr. Leeder was reprimanded and reassigned from the Forensic Unit where he had been a satisfactory employee since 1985 and where he had had a discipline-free record and satisfactory Performance Evaluations. By a memorandum from Richard Portieous, dated October 5, 1993, which he received October 14, 1993, he was reassigned to the Nursing Float Pool until further notice. A letter of reprimand, supra, was placed on his corporate file. 32 The Board has had the benefit of evidence from three of the four Nursing Staff assigned to the Forensic Ward the evening of September 10, 1993, as well as their reports written within a few days of the incident. testimony as she was not called. Mr. Portieous, in drawing his conclusions, also had the benefit of the same three individuals and, likewise, did not have information provided by the fourth as he chose not to involve her in the process. Ms. Peever was in possession of information gained from Mr. Portieous and appears to have attended on the Ward on the morning of September 1 1, 1993. The Board also has the charting done on Patient X, by a number of RNs and PRNs from the beginning of his stay of the Forensic Ward. The Board did not have the benefit of the fourth staff person’s From this evidence the Board has been able to glean the following information about Patient X and his behaviour between September 9, 1993, at 0630 hours and September 11, at 0500 hours: Patient X’s telephone behaviour was causing problems for his mother, his grandmother. [D. Vallentgoerd R.N.A.] On the night prior to the incident he was demanding of staff at times. [ C. Johnston, R.N.] He was belligerent, demanding and hostile, while his girlfriend was waiting to come in for a visit [B. Leeder, Reg. N.] He continually disobeyed the no contact rules at the visit [B. Leeder, Reg. N.] He was challenging, angry and unpredictable to the point that it was recommended that his visiting privileges be discontinued by Barry Leeder. [B. Leeder, Reg. N.] Dr. McFeely discontinued his visiting privileges. [D Vallentgoed, R.N.A.] Dr. McFeely reported he was not co-operating with assessment. [D. Vallentgoed, R.N.A ] Mr. Fournier and others had concluded that was anti-social and difficult to handle [John Fournier] From the documentary and viva voce evidence, the Board finds that the following events took place on the Forensic Ward on September 10/1 1, 1993, and in the time frames listed below 33 but not necessarily in the order set out It has also been able to draw some conclusions from these findings. 1900 Hours to 2200 hours On the September 10/11, 1993 night shift from 1900 to 0700 there were 10 patients on the North End assessment unit and an unknown number of patients on the South End. Two staff were assigned to each end Kevin Latimer, RN and Willie Heisel, RNA (Medications Nurse) to the South End and the Control Room, and Barry Leeder, Reg. N. and John Fournier, RPN to the North End. Barry Leeder and his colleagues on the Forensic Ward had not been warned that Patient X was an escape risk nor did he warn others of this risk, given that this was not known to him. During this period most of the patients were in the living/television room or in the smoking room but did make trips from time to time to either of the bathrooms. John Fournier began his Seclusion Monitor duty at 1900 hours and was confined to the North End Nursing Station until 2200 hours. Patient X “made himself visible [to John Fournier] 2 or 3 times” during that three-hour period. The only conversation was asking for a towel for a shower which Mr. Fournier explained he could not get due to the fact he could not leave his post. Patient X did not indicate any other form of distress or complaint about his condition to John Fournier during that three-hour period. For his part, Mr. Fournier had no suspicions of an escape attempt. Barry Leeder spent from 1900 to 2200 in the North End Nursing Station, on the Ward, or at the South End Nursing Station. At 2030 hours on the evening of the incident Patient X received a phone call from his girlfriend [B. Leeder, Reg. N.] From his post on the Control Monitor in the South End between 1900 and 2230 hours. Kevin Latimer noticed “one guy coming out of the North End] bathroom more frequently than normal” and going as well to his bedroom and to the north window There was no evidence that he notified other staff about his observation. Willie Heisel carried out medication rounds (precise times are not available) and as part of these had contact with Patient X at 2140 hours. Prior to 2200 hours, although Mr. Leeder was no more precise than that, Patient X approached him at the North End Nursing Station and spoke of having some bowel difficulties, having some constipation, some “difficulty going” and also spoke of all sorts 34 ofthings not related to that. Mr. Leeder concluded that he was asking for information, having made the observation that Patient X did not appear distressed or alarmed, and was calm and spoke in a conversational tone. At some point in time prior to 2230 hours, Mr. Latimer was asked for a couple of towels by either John Fournier or Barry Leeder and he provided a couple of sheets, a not unusual practice. For it to have been John Fournier, the sheets would have been brought to him at the North End Nursing Station and if it was Barry Leeder he more than likely would have picked them up in the South End since he indicated that he would not have called for a Nursing Staff person for the sole purpose of bringing towel/sheets. At 2 140 on the evening of the incident, Patient X “confronted staff, demanding his regular nightime [sic] medication.” . . . “Became very hostile and asked if staff was calling him a liar.. .” He was then given PRN medication. [W. Heisel, R.N.A.] Up to this point, Mr. Leeder has listened to Patient X’s complaints, observed him and concluded that he was calm, and not distressed or alarmed and that he was seeking information. Should he have taken the constipation complaint seriously rather than concluding that, given the other information, Patient X was probably not constipated ? The Board is aware that in a psychiatric setting certain patients may become overly focussed on their bodily functions and physical ailments, that some may present ‘imaginary complaints’, while still others may create complaints in order to manipulate staff or to gain attention. The Board is of the opinion, however, that such complaints cannot be written off, even though they may not seem credible, particularly when the patient is not well known to the Nursing Staff member receiving the complaint. In the case of an initial complaint of constipation, which would not be considered a medical emergency, it should be noted on the patient’s chart that s/he complained of constipation. This alerts Nursing Staff on the following shifts to monitor the possible condition and to consult with the ward physician, if appropriate, to determine if there is, in actuality, a medical condition requiring a medical response. It also ensures a continuity of information. One must keep in mind that Nursing Staff are not permitted to provide medication which has not been ordered by a physician. * * * Further, it not acceptable for Nursing Staff to rationalize a patient’s complaint by using his or her own personal experience as a bench mark, which Mr. Leeder as he testified to on two occasions The Board finds that on the evening of September 10, 1993, prior to 2200 hours, 35 Mr. Leeder's failure to chart the constipation complaint of Patient X and his use of his personal experience as a benchmark against which to evaluate a patient complaint are the only actions which could be considered inappropriate. From 2200 Hours to 2230 hours At 2200 hours Mr. Fournier left his post at the Seclusion Monitors in the North End Nursing Station and was replaced by Mr. Leeder. Mr. Fournier began his duties outside the North End Nursing Centre by locking the 2 North End telephone rooms. He then went to the South End to prepare night nourishments Patients began their preparations for bed resulting in an increase in activity in the area of the male and female bathrooms. Between 2200 hours and 2230 hours, Patient X came two or three times to the North End Nursing Station. It was at this point, Mr. Leeder testified, that Patient X announced that he had given himself an enema thereby aggravating his hemorroids and resulting in some bleeding. He told Mr. Leeder there were no towels and that he would use a sheet to wash up. Mr. Leeder spoke with Patient X and observed him. From his post in the Nursing Station he was able to see him at a distance of approximately a metre and was able to hear him and speak to him. He did not observe any blood, facial pallor, disorientation or recent change in his demeanour. Mr. Leeder was not free to leave his Seclusion Monitoring duties and did not consider Patient X to be in any danger or that his condition warranted summoning another member of Nursing Staff from his/her duties elsewhere. Was there any dereliction of duty on the part of Mr. Leeder during this time period '? The uncontradicted evidence shows that Mr. Leeder did observe and assess Patient X, and that his conclusion there was no emergency was not an unreasonable one under the circumstances. However, the Board is of the opinion that Mr. Leeder should have investigated the enema story to the extent that reasonable at the time: that is, to have asked Patient X to produce the bottle he was claiming to have used. He should also have charted the complaint of bleeding. Further, rather than putting the bleeding down to either another story, or to bleeding not sufficient to be 36 concerned about, he should have put it on his list of things which needed examining in the short term, that is, by himself, when he could reasonably be freed from his Seclusion Monitoring duties or by John Fournier when had completed his rounds. Follow-up on this complaint should certainly have been within a reasonable time after Patient X’s having mentioned it. Should Mr. Leeder have investigated Patient X’s request for a towel, asked for towels from South End, or prohibited Patient X from having a towel ? The use of sheets for other than bed use is common practice in psychiatric hospitals and the evidence showed clearly that it was normal practice to use them on the Forensic Ward when the supply of towels had run out. It appears from the evidence that there were none on either end of the Ward. There was no prohibition of this substitutional practice and it may be that their use and availability is not desirable from a security point of view in a Forensic Ward. Mr. Leeder, Mi. Fournier and Mr. Latimer were all aware there were no towels and all aware that a patient wanted substitute sheets. It was not Mr. Leeder who supplied the sheet from which the rope was made, nor did he consider it an emergency for this demanding patient to have a sheet to wash himself. The patient had also spoken to Mr. Fournier about the sheet and he, as Mr. Leeder, did not consider that Patient X’s request for a sheet required investigation, interrogation or an immediate response. The Board does not consider, given the practice, and Mr. Leeder’s experience with Patient X, that his response to this patient’s notice concerning his use of a towel to wash up, was unreasonable. From 2230 hours to 2245 hours At approximately 2220 hours, having finished night nourishments, Mr. Fournier began his rounds. At approximately 2230 hours Kevin Latimer came to the North End Nursing Station to pick up the census sheet. He had been replaced in the South End Control Room by Willie Heisel. He and Barry Leeder had a discussion about ordering pizza. This is the period during which Mr. Leeder had an opportunity of checking Patient X’s report of bleeding and, if there were indicators at that time, based on his examination, that it was necessary that his vital signs be taken, this should have been done, as well. 37 From 2245 hours to 0100 hours e At approximately 2245 hours, as John Fournier was completing his rounds, he entered the male bathroom and found Patient X in questionable circumstances and damage to the window and the lighting. He ordered Patient X out of the bathroom and reported the incident at the North End Nursing Station. There to hear the report were Barry Leeder who was on Seclusion Monitoring duties and Kevin Latimer who was not engaged in any particular activity at that time, since the actual picking up of the census was not an activity requiring any more than a few seconds, unless he had to wait for it, and there was no evidence of this. Once the report was given the four staffmembers responded promptly to what Mr. Leeder characterized as an emergency situation, as follows: e John Fournier went and got a flashlight e Barry Leeder had Willie Heisel who was covering the Control Room in the South End assume his monitoring duties. e Kevin Latimer and John Founier went to the male bathroom to investigate. e Barry Leeder joined them within a matter of two or three minutes, having freed himself of his Seclusion Monitoring duties. e They focussed on the shower area. Patient X remained in the vicinity, talking, and appeared to be trying to free himself of any responsibility for the damage. During this period, Kevin Latimer and John Fournier heard a car driving around outside but paid little attention to it. A review of the evidence of the three Nursing Staff who were present showed that they observed (a) that the light had been damaged and was out of commission; (b) that the upper pane of glass of the window over the tub had been removed and placed in a shower stall and water run over it; (c) that the lower window frame over the tub which was not readily removable had been pried and its pane broken; that there was a 2 1/2 to 3 inch diameter hole in the screen on the lower window section, an enlargement of a hole which had been there for several months; 38 e (d) a small amount of blood on the window sill, a smearing of blood on the toilet area walls made by fingers, blood mixed with water on a sheet in the laundry hamper and a small amount of blood mixed with water on the floor; (9 a sheet torn into strips, fashioned into a rope long enough to reach the ground, and fed through the hole in the screen, with a bar of soap tied to the end. On observing the blood, Barry Leeder mentioned the complaint which had registered with him approximately one hour previously. Kevin Latimer and Barry Leeder then checked Patient X in the privacy of the washroom area for signs of blood and found none. They checked his hands elbows, knees, feet and buttocks. They observed no cuts, and no signs of trauma. Patient X was ordered out of the male bathroom. Kevin Latimer went to the South End Nursing Office and informed the Nursing Office of the situation, asking them to notify the duty doctor as the Staff had concluded that Patient X was a problem and in their opinion, should be moved to jail. This was within 10 minutes of John Fournier’s notification to him and Barry Leeder. [He returned.] They went on to check other patients in the same manner, although the location was not clear fiom the evidence, to determine the source of the blood until Mr. Leeder heard from a patient other than that he had observed Patient X cleaning himself of blood caused by hemorroids. One of the Staff locked the male bathroom and told patients to use the female bathroom. One patient reported to Jean Fournier that she was afraid because she had seen Patient X with, she initially said a gun, then a tire iron, and finally a bar. Staff carried out a bed and room search of Patient X’s room and found nothing. [According to Ms. Peever’s submission to the College of Nurses a crowbar was found in the chesterfield of the living room the following morning and reported to the OPP.] Barry Leeder and Kevin Latimer carried out an examination of Patient X’s anal area and discovered nothing unusual, no cuts, no reddened area, no swelling; Two or three other Staff arrived having been sent by Nursing Office One Staff was posted outside Patient X’s room One Staff relieved Kevin Latimer from his checking of patients with Barry Leeder. 39 During the time when Barry Leeder and Kevin Latimer were checking patients John Fournier continued to observe the vehicle which, he testified returned 4 or 5 times. He then went to the smoking area and attempted to communicate with the occupants of the vehicle. Once Kevin Latimer was relieved of patient examinations, he and John Fournier initiated a perimeter search. There is no evidence to show that their perimeter search for contraband, their contact with the occupants of the car, their following of the car to obtain the licence number, was initiated by, participated in or condoned by Barry Leeder. On his return to the Ward, Kevin Latimer telephoned the Nursing Office for the second time. Nursing Ofice contacted the duty doctor who [telephoned and] decided the patient was dangerous and should be returned to jail immediately. Mr. Latimer informed the Nursing Ofice of this. Barry Leeder spoke with Patient X who asked for PRN medication and went to his bed to wait for it. Mr. Leeder returned to the Seclusion Monitor During this segment of the evening, the time referred to by Mr. Leeder as an emergency situation, did Mr. Leeder have control of the situation and carry out his duties in a reasonable manner? In considering this, the Board first looked at the “team’s response” to the situation and concluded that, while it agreed with the Employer that the involvement of two of the team members with the individuals outside was risky and ill-advised, that otherwise, the team functioned reasonably efficiently. Both Mi-. Latimer and Mr. Leeder, in their view, Mr. Latimer was in overall charge and therefore, it was not Mr. Leeder’s position to forbid Mr. Latimer and Mr. Fournier from undertaking the actions they did with respect the outside individuals. Mr. Latimer also testified that Mr. Leeder was in control of the North End shortly following discovery of the damage in the male bathroom. He also stated that he believed that the patients were unaware of the situation. The Board finds it difficult to accept that Mr. Latimer could have known whether or not Mr. Leeder was in control of the Ward during the time that he, Mr. Latimer, was outside the building. Further, it is clear from Mr. Foumier’s evidence, that at least one patient was aware of Patient X’s activities and it must be concluded that those patients who were examined following the discovery of the blood, must have realized that something had 40 occurred, although they may not have known precisely what had occurred. That is not .to suggest that Mr Leeder was not in control and carrying out his duties, in the opinion of the Board he was doing so in a reasonable and efficient manner. Leeder handled the blood-stained sheet irresponsibly, however, it was testified to by Kevin Latimer that all blood is treated as contaminated and that there is no special protocol for the blood of who test positive for HIV. It was further suggested that Mr. Leeder should have reviewed Patient X’s chart. The chart shows that this patient was not unfamiliar to Mr. Leeder, in that he Counsel for the Employer suggested that Mr. charted his behaviour the previous night, and recommended that his visits cease, a recommendation which was accepted by the physician. However, it would have been wise for Mr. Leeder to update his knowledge of Patient X by reading the entries to see if any physical symptoms had been noted. Post 0100 hours on September 11, 1993 to 0700 hours a Mr. Leeder handed over seclusion monitoring to John Fournier at 01 15 Mr. Leeder prepared his Incident Report at 0100 hours Mr. Leeder signed the Seclusion Flowsheet for the periods during which Willie Heisel had taken over his monitoring. (The exact time for this is not known) a Three police officers arrived on the Ward at 0140 hours. The police officers left in order to determine which facility they would transport to The officers returned at approximately 0430 hours and arrested for attempting to escape custody. It was the observation of Mr. Latimer that at that time was very belligerent towards police and staff and uncooperative. He was removed from the Ward at 0500 hours. a The four staff who had experienced the incident sat together and discussed it a Kevin Latimer prepared his incident report. During this period, although it is possible the actual signing of the Seclusion Flow Sheet could have taken place earlier, Mr. Leeder signed as having observed a patient when, in fact he had not done so. Although he acknowledged in the hearing that it was clearly wrong, he did not, 41 in the opinion of the Board take this matter as seriously as it merits The signatures on the Seclusion Flowsheet are the professional’s word that s/he has observed a certain patient and his/her conduct and well-being or lack of To sign for someone else is both dishonest and unprofessional and its seriousness should not be underestimated since it goes to the foundation of professional trust. Mr. Leeder should understand that this must not happen again. There were no further problems reported on the Forensic Ward as the Nursing Staff awaited the return of the police to remove and relocate Patient X. In the end, the source of the blood remains unknown; there was no evidence of aggravated or bleeding hemorrhoids on examination of Patient X by Mr. Latimer and Mr. Leeder, there was no evidence of cuts on examination by Mr. Latimer and Mr. Leeder, and there was no evidence of the soap suds enema except for the reporting of Patient X. The information supplied by Patient X cannot be the foundation for any evidentiary findings. It is simply not reliable. One of the difficulties in the aftermath of the incident is how a single complaint became “numerous complaints every 10 minutes of bleeding hemorrhoids”; “a little bleeding” became “bleeding profusely”; and a towel substitute, the sheet, which was requested for washing up, became the “sheet to mop up the blood from the floor”. This began with Mr. Portieous’ report to Ms. Peever, and continued in Ms. Peever’s report to the College of Nurses. The evidence does not support these inflationary changes. Ms. Peever’s report goes on to say that Staff noticed that a couple of people (identities unknown) had been in communication with the forensic client but were unable to detain them. as if it was a positive move on their part to undertake this and it was unfortunate that they did not succeed, when in reality those individuals who undertook this, received a letter of counsel, for having done so. It is important to keep in mind that when Mr. Leeder, and others reviewing his situation read the written material, they are not usually doing so in conjunction with other material or background. However, even if the reader had the letter to of counsel to Kevin Latimer, and read 42 it in conjunction with that of Mr. Leeder, that person would be left with the strong impression that Mr Leeder’s actions and lack of action were responsible for the events of that evening, and that Mr. Latimer was unfortunate, but well intentioned when he undertook the activities outside. No account was taken, it seems, in spite of the chart audit done by Mr Portieous of Patient X’s behaviour since coming on the Ward in evaluating the conclusions that Mr. Leeder came to. The matter was reported to the College of Nurses in conjunction with the March 1994 incident and there was no suggestion that this patient posed particular difficulties or that recommendations were subsequently made by the Security and Protocol Committee to deal with some of the problems which had arisen. The sum total of this, and the impression that Mr. Leeder must have been left with, is that the whole incident was seen as his fault. This is the impression the complaint to the College of Nurses gives as well. All of this has affected Mr. Leeder’s reputation at the Hospital to the point that managers and others are reluctant to have him on “their” ward or in their service. This was clear from the testimony of those involved in the Ward 8 incidents. Mr. Portieous’ report had more to do with blaming Mr. Leeder, than of establishing facts surrounding the events on the Forensic Ward the night of September 10/11, 1993, although that may not have been his intention at the outset. punitive and destructive and did little to establish facts. In his investigation, Mr. Portieous was not open to the possibility that Mr. Leeder had made an assessment of Patient X and that his assessment might have had some validity. The only version he was willing to countenance was one that gave credence to all Patient X’s comments. It comes across as both This process and its result, the letter of reprimand and the reassignment off the Forensic Ward, in the opinion of this Board, have saddled Mr. Leeder with an undeserved reputation and while his signing the Seclusion Flowsheet was serious and merited correction and there were certain improvements he might have made with respect to charting and other details set out above, these fall far short of the accusations levelled at him which are set out above. The Board is of the opinion, that his conduct on the night of September 10/11, 1993, as an initial incident, 43 should be downgraded to a letter of counsel.. It does not believe that it is appropriate to simply downgrade the particular letter of reprimand since that letter accuses Mr. Leeder of so many things for which he was not responsible and could never be characterized as a letter of counsel, which in essence is to help and advise. The new letter should reflect the findings of this Board and should remain in his file for a period of one year from the date of this decision. The Board is also concerned about the further damage to Mr. Leeder’s reputation caused by the Employer’s correspondence to the College of Nurses. The Board draws the Employer’s attention to the fact that it had indicated to Mr. Leeder that any further incident of such a serious nature will lead to progressive disciplinary action being taken and may be reported to the College of Nurses of Ontario for review. In effect, the March incident then lead to dismissal and the forensic ward incident was also reported. The October 5, 1993 letter to Mr. Leeder clearly states that future incidents might be reported. As it turned out, progressive discipline was rejected in favour of dismissal, and the forensic ward incident, which was in the past, not the future, was also reported. The Board strongly recommends that the Employer and the Union combine efforts to arrive at a mutually agreeable solution, the aim of which is to correct the erroneous information provided to the College of Nurses. This might also include retraction. ......................... 44 GERO-PSYCHIATRIC WARD 8 INCIDENTS Saturday/Sunday MARCH 5/6,1994 AND SUNDAY/MONDAY, MARCH 6/7,1994 Barry Leeder was informed by memorandum dated February 8, 1994 from Mrs. J. Mills, Manager of Nursing Services, that he would be temporarily re-assigned as a replacement for maternity leaves to Ward 8, one of four gero-psychiatric wards under the coordinatorship of Danny Seed, RN. He was notified to contact Diane Weatherdon, Head Nurse. Mr. Leeder had worked on this Ward on two occasions since his reassignment to the Nursing Float Pool, but did not receive any formal orientation to the Ward. He was not happy about this assignment and it was clear from the evidence that some of those who were “regulars” on the Ward, the Head Nurse and the Nursing Coordinator were not happy that he was coming to work on “their” Ward. Danny Seed testified that he was “not happy about Barry Leeder’s assignment to Ward 8” and “had concerns due to the previous incident”. It was his impression that Mr. Leeder did not have “all that favourable reputation around management”. He stated that Diane Weatherdon, Head Nurse on Ward 8 had expressed concerns about the assignment. Ms. Weatherdon testified that “there had been rurnours which preceded Barry Leeder which were not complimentary about his job performance and competency”, but that she felt he should be given a chance and testified that she conveyed this to those on the Ward, noting that “everything was hearsay and through the grapevine”. It was rumoured that Mr. Leeder did not want to leave Forensics. For his part, Mr Leeder testified that on March 5, 1995, he was sensitive to the fact he was newly assigned to the Ward since he expected to be there for some time he did not want to get anyone in trouble or make enemies. On March 30, 1994, following a pre-disciplinary hearing on March 28, 1994, Mr. Leeder was dismissed and sent the following letter from Linda Peever: On March 28, 1994, I chaired a pre-disciplinary meeting to review allegations that you failed to discharge the assigned professional duties of Registered Nurse in relation to charting and treatment of a critically-ill patient assigned to your care and instead of performing the professional duties to which 45 you were assigned, you slept during portions of both of the aforementioned shifts (March 5 and 6, 1994). Enclosed is my review and decision arising out of the March 28, 1994 pre- disciplinary meeting. I have concluded that just cause exists for your dismissal from employment as a Registered Nurse with Brockville Psychiatric Hospital. Therefore, I must advise you that you are dismissed from employment in accordance with Section 2 (3) of the Public Service Act effective March 30, 1994. I am required to advise you that, should you disagree with the decision, you have the right to fiIe a grievance at the second stage of the grievance procedure, provided that you do so within twenty (20) days of the date of your dismissal. The pre-disciplinary hearing was attended by the Grievor, his union representative, a union steward, the chief steward, a representative from Human Resources, the Nursing Co- ordinator of the Gero-psychiatric Service, and the Assistant Administrator, Patient Care Services who chaired the meeting. The Chair arrived at the following decision Based upon the evidence presented by both parties at the pre-disciplinary meeting and a review of the employee’s corporate record which indicates prior disciplinary action was taken within the last six months for similar professional misconduct, and review of other relevant data, it is concluded that on March 5 and 6, 1994, Barry Leeder, Reg.N., failed to discharge assigned professional duties of a Registered Nurse in relation to the charting and treatment of a critically-ill patient assigned to his care and slept through significant portions of both of these shifts. Having carefully considered the serious nature of the offence and Mr. Leeder’s prior disciplinary record, it must be concluded that just cause exists for Mr. Leeder’s dismissal from employment as a Registered Nurse with Brockville Psychiatric Hospital. In accordance with Section 86 (b) of the Health Disciplines Act (revised) statutes of Ontario 1980, Mr. Leeder will be reported to the College of Nurses of Ontario for professional misconduct. 46 It was explained by Mr. Seed that Brockville Psychiatric Hospital is a facility which operates on a “team concept” and that an important factor in this concept is the mutual reliance of staff, a key component in high morale and levels of performance. It is different from the staffing arrangement normally found in a general hospital or nursing home where staff are assigned to specific patients. Under the “team concept” used at Brockville Psychiatric Hospital, the team as a whole, is responsible for all the patients, and the RN who is team leader or charge nurse at the time is ultimately responsible for charting. . Staffing on Ward 8 on nights, is at the minimum level considered by the Employer to be practical and safe, that is, 1 RN and 1 RPN. Mr. Seed testified that rounds are to be a made a minimum of once hourly and more frequently for a variety of other reasons, This staffing arrangement does not, according to one of the witnesses who works regularly on that ward, allow for the situation in which two staff are required to deal with a patient and a third is needed to either call for further assistance or to assist the other patients. A physician attends on Ward 8 on a daily basis during the day shift. On the night shift, if it is determined by the Charge Nurse and confirmed by Supervisors in the Nursing Office that a physician’s presence is required, then a physician is summoned. Ward 8 has thirty-four beds with a usual occupancy rate in the neighbourhood of twenty- five. Twenty-six patients were on the Ward on the nights in question. Patients do not have access to a buzzer system to call the Nursing Staff Most patient rooms are doorless, separated by a metre-high partition and and house from 2 to 4 patients. According to the testimony of Ms. Ferguson, an RPN regularly assigned to that Ward on nights, it is not possible to adequately observe a patient without entering the room area. Patients are ambulatory, ambulatory with wheelchair assistance, and non-ambulatory. They require considerable physical assistance and a highly supportive atmosphere. This means that the staff must lift, turn, toilet, change, feed, dress, and bathe many of them. They must also comfort, respond to and provide human warmth and contact. As well, the Nursing Staff provides observation, assessment, prescribed medical care and treatment, administration of medication and regular record keeping or charting. 47 Charting The Nursing Staff is assisted in its patient care by the Cardex System which provides pertinent information on each patient in shortened form as well as a photograph to enable the Staff to identify the patients with certainty It also sets out the individual patient’s treatment plan. The system lists any specific problems or behaviours, personal likes and dislikes, and what may cause a patient to become agitated. This system is frequently referred to and is usually mentioned when change-over report is being given It is normally maintained by the Prime Nurse assigned to that patient. The Daily Ward Report completed by the Charge Nurseor Team Leader on each shift On it is recorded the staff in charge, the attending physician, the number of beds and occupancy number, the number of patients on special observation. There is also a space for notations of non-routine incidents and patient condition. The Charge Nurse also signs confirming the round frequency and whether or not PRN medication was dispensed. There is, as well, a large black book for each ward, known as The Black Book, in which the Nursing Staff communicate with each other about the the shift’s non-routine, activities and incidents that have taken place on the Ward and with the individual patients. Debbie Steele, RN explained that this is not considered a legal record. Further, there is for each patient, a running chart of Progress Notes on which the Nursing Staff records medications given, items of note, and occurrences which are unusual for that particular individual., If the patient is on a PRN medication order, that is medication as needed, there is a patient specific chart entitled PRN/STAT Medication Orders Once Only, on which the provision of any PRN medication is recorded as to date, time and provider.. With respect to charting, the Hospital follows its own Policies and Procedures and meets the minimum College of Nurses’ Standards. The College of Nurses in its Principles of Documentation sets out guidelines. Those which are pertinent to the issue at hand are set out below: 48 Introduction Documentation is an important part of safe and effective nursing care. In fact, it is the final step of each nursing activity. This College of Nurses of Ontario (CNO) publication discusses the purposes and principles of nursing documentation, applicable to any practice setting No matter what system of documentation is used, paper or computer, the same purposes and principles apply. The context of the situation will determine what form this documentation takes and the type and amount of information that is documented. The health record includes documentation of care by all disciplines; for example, medicine, physiotherapy, occupational therapy, dietary, nursing. Since health records reflect the quality of care given, it is worthwhile to examine both the documentation process and the record itself Purposes of Documentation 1. Communicating Client Health Information The health record facilitates communication by making information about the client available in a permanent form to all health-care providers. It also serves to remind individual RNs and RNAs of the care they have given, in order to make future care decisions. ... 2. Providing Continuity of Care The health record facilitates continuity of care by enabling nursing staff and other health-care providers to use current and consistent data, problem statements, diagnoses, goals and strategies. 3. Demonstrating Accountability In Ontario the Health Disciplines Act requires RNs and RNAs to maintain nursing records for clients to whom care is given. 49 Other legislation may require specific content to be maintained Legislation pertaining to RNs’ and RNAs’ practices and their employment settings need to be consulted. Documenting in the health record demonstrates accountability. RNs and RNAs are accountable, that is, responsible, for the care they give. Professional accountability, includes responsibility to the client, the public, CNO, the nursing profession, and oneself. As employees, most RNs and RNAs are also accountable to employers. Since records are considered to demonstrate RNs’ or RNAs’ accountability, the record may be used to settle concerns or questions about care given. Nursing documentation is normally readily admissible evidence in legal proceedings. Facts documented at the time an event occurred are generally regarded to be more credible than an oral account of events from memory. “In the system of justice, good notes will save you, poor notes discredit you, and no notes destroy YOU.” 4. Providing Quality Assurance Documentation is often an integral part of quality assurance mechanisms to evaluate the quality of care. For example, documentation is important in carrying out such mechanisms as performance reviews, chart audits, accreditation, legislated inspections, board reviews. Whenever records are reviewed as part of quality assurance, it is assumed that the quality of care is reflected in the documentation. Records as a quality assurance mechanism, however, may reflect poor documentation rather than poor care. If so, either the system or the documentation requires improvement. RNs and RNAs can identify deficiencies in care and take corrective action. 5. Facilitating Research The health record can be a valuable source of data for health research. From a nursing perspective, the health record can be used to assess nursing interventions, and evaluate client outcomes, as well as identify care and documentation issues. Accurate recorded information is essential to providing accurate research data. Through nursing research, RNs and RNAs are able to continue to improve on safe, effective and ethical nursing care. 50 Principles of Documentation 1. Documenting Care is an Integral Part of Giving Care CNO ’s Standards of Nursing Practice For Registered Nurses and Registered Nursing Assistants identify documenting nursing care as a minimum expectation. The nursing process framework is one way in which RNs and RNAs organize the care they give. It can also be used as a framework for documenting. The nursing documentation includes evidence of the following: assessing the client’s health status including developing a plan of care evaluating both the nursing strategies and client identifying problem/strength statements or nursing diagnoses implementing the plan outcomes. CNO believes that respect for the dignity, worth, autonomy, and individuality of each human being is inherent in all aspects of nursing. One way of demonstrating this respect is to assess and document a client’s preferences for care. The care plan reflects this information. It is important for RNs and RNAs to document their actions in carrying out both their independent and interdependent roles. Often RNs and RNAs focus on documenting activities related to their interdependent role. It is equally important to document those activities related to nursing’s independent role. For example, documenting social interaction opportunities and health teaching are as important as documenting medication administration. The health record is a vital communication link between health-care providers. For this reason, it is important that relevant information exchanged between professionals is documented. For example, when an RN or RNA calls a physician, he or she documents both what was reported to the physician and the physician’s response. 2. Documenting Practices are Consistent Current and accessible policies are needed to facilitate consistent 51 documenting practices. CNO also encourages RNs and RNAs to ensure that they understand any existing policies and advocate improvements in them Effective policies take into consideration who the clients are and what their needs are. They identify the who, what, when, where, and how of documenting. Who documents and how they identify themselves. What to include and exclude: consistent with legislation governing the agency. When to document; that is, frequency. Where to document; for example, handwritten in a chart or keyed into a computer; on nursing notes, flowsheets, or progress notes. Information is easier to find if it is kept in the same place on each record. Avoid duplication. How to document; for example, narrative notes, problem-orienting recording, documenting by exception. If using a documenting by exception system, written standards of care are necessary in order for this system to be viable. Often employers will provide specific direction for documenting. Records are Written by the Person Who Saw the Event or Performed the Action The Health Disciplines Act and the CNO’s Standards refer only to the requirement for RNs and RNAs to document. Agency policy will identify others who may or may not write on the client’s records. The policy may require that RNs and RNAs document observations and actions of other care providers, such as health care aides or orderlies. In this case, ensure that records are clear so that those reading the record will know who saw the occurrence or performed the action and who did the documenting. Sometimes RNs and RNAs are expected to co-sign entries made by other nursing staff. CNO does not recommend this practice. RNs and RNAs are 52 accountable for their own actions and behaviours. Documenting in the health record demonstrates one’s accountability, omitting the need for co- signing. If agency policy requires RNs and RNAs to co-sign for others, accountability becomes unclear. If the RN or RNA has firsthand knowledge of the situation or has done his or her own assessment of the situation, it is important for the RN or RNA to make his or her own entry. In some settings, it is the practice for documentation to be done by anyone, not necesssarily the person who gave the care. This practice is not recommended. Help colleagues, not by documenting for them, but by assisting earlier with the care. Each RN or RNA then documents the care that he or she gave. [Emphasis added] 5. The Closer to the Event the Record is Made, the Greater the Credibility CNO’s Standards state .that the RN or RNA “documents and updates all information as soon as possible without compromising client safety”. The longer the interval between the event and the documentation, the less credible the information may be. If an entry is forgotten, it may be documented when remembered at the next available entry space. Document both the date and time of the entry and the date and time that the care was given. It is also useful to note the reason for any late entry; for example, ‘forgotten entry’. The principle to remember is that it must be dear to anyone reading the record both when the care was given and when it was documented. When a question or concern about the care has been rasied RNs and RNAs need to obtain specific direction from the employers or legal counsel as to the acceptable procedure to follow about late or forgotten entries. Sometimes personnel from the records department request RNs and RNAs to document omissions found in discharge records. If the RN or RNA can accurately recall the care given, entries need to be made as will all other forgotten entries. If care cannot be accurately recalled individuals must not feel pressured to comply with these requests. The employer needs to be consulted. Documentation, Mr. Seed, explained, validates the qualitative and quantitative care the Staff gives to each patient, provides a legal and public record, and conveys to the Supervisors and Management Staff, the status of each and every patient. Charting Documentation of 53 Progress Notes is part of the Brockville Psychiatric Hospital, Nursing Policy and Procedure Manual and this particular section was last updated in July 1992. It reads as follows. Progress notes are documented. 1. 2. 3. 4. 5. 6. 7. 8. 9. Shiftly, for 72 hours (3 days) by all shifts, following admission, or as per physician’s order. Pertinent information is recorded daily, with 24 hour follow-up when indicated. At a minimum of once a month, when a patient’s condition has stabilized (see II-S-60). Nurses may make reference to information concerning reports, made by other disciplines. When a patient is on full clinical chart, documentation is done by all shifts until discontinued by the physician. a) b) c) close observation - document every two hours on 1 : 1 observation - document every hour on seclusion - document every 15 minutes and the documentation on the progress notes is done every hour). When a patient is transferred to or from another facility, discharged, or at the time of death. When a patient goes out on a leave or returns from a leave. When the physician visits and orders are received or changed. All unusual occurrences, significant interactions, etc. The excerpt from the Nursing Policy and Procedure Manual does not address the issue of who should do the charting. The evidence of Nursing Staff demonstrated that they did not have a single view of charting responsibility. The evidence of Management was that with the team concept, the Charge Nurse or Team Leader is responsible for charting and that includes charting care or observations made first by other team members. Assurance that everything is observed by everyone and that the Team Leader always knows what others see and do is difficult to accept. 54 Ms Robertson was asked to explain the charting procedure as she was familiar with it She testified that when someone is seriously ill that the charting is normally done by the Charge Nurse and that she would not undertake to do charting of such an ill patient unless it were delegated to her. Ms. Ferguson stated her understanding was that Nursing Staff is under an obligation to chart and that generally speaking one should do first-person charting, however, she was of the opinion that an exception is made in the case of the critically ill, in which case, the team leader is to take responsibility. She explained that one is relieved of one’s obligation to chart a chartable item if one reports it to the person who is responsible. She did not believe that initialling would be required, in that instance. She testified that “As a team, we work together and see all patients, and we usually observe most things ourselves, too.” To maintain consistency, the charting of a particular patient is usually done by one member of the team. She explained that she would chart patient care which was out of the ordinary, and PRN medications. Should an incident occur, such as a fall, then the individual who witnessed the incident would be asked to chart it. Because they work as a team, Ms. Steele testified, usually all members see what is done. Rhonda Jansen testified that the charting on a patient whose condition was serious would be at the discretion of the RN. There is an obligation for an RN to chart significant items and part of the job is deciding which items qualify as significant. If a patient is on “full chart” it is usual to check vital signs twice per shift. This is either at the RN’s discretion or by the Physician’s order. If a patient is on full chart then it would be expected that Diane Weatherdon, Head Nurse, would “put full chart and assign a specific person to do it. On nights, Rhonda Jansen explained, both observe but the FW is responsible for charting. This can, however, be delegated. If there is one ill patient, normally one person would chart on that patient. However, if there were five to ten ill patients, then the charting would be shared. She testified that ‘People are not charting things they have not seen.” According to Ms. Jansen, there is a legal requirement for the Medications Nurse to chart both the providing and the withholding of medication Barry Leeder testified that one-person charting is not carried out on the Forensic War and that he had not been told about this practice. Ms. Peever and Mr. Seed expressed the concern that if there were no documentation, then, no care had been given. It is unusual, Mi. Seed stated, to have extensive charting with periods during which no charting at all had been done. 55 Ward 8 Routine The routine on the night shift (1900 to 0700 hours) on Ward 8 was described for the Panel by Ms. Robertson, who had been assigned as an RPN to that Ward since June 1990, and following that, by Ms. Ferguson who has been a regular, night RPN on Ward 8 for over seven years, then by Deborah Steele, an RN who has worked at the Hospital since 1979 and on Ward 8 since 1985, and Rhonda Jansen, who has been an RN for 11 years, ten of them at the Brockville Psychiatric Hospital. The Night Shift begins by the Night Staff receiving a report from the Day Staff informing them of any unusual occurrences, problems, visitors and other noteworthy items related to patients and the operation of the Ward. Following that, the Charge Nurse delegates duties and the RPN dispenses medication, an activity which may be done over a period of several hours in order to respond to patient needs simultaneously. During this time, the Charge Nurse takes care of the necessary paper work such as the census. If nourishments have not been served at the same time as medication, then the RPN would move through the Ward with nourishments for the patients and the RN usually checks patients and change some, if that task can be carried out by one person. Following this, both nurses complete the putting to bed, washing, changing and turning of patients requiring two persons, and the changing of their bed linen if this is indicated. The patients are also given “night care” as part of their bedtime routine. This is essentially skin care with sponging and moisturizing, and changing of any dressings that require it. When the patients are all settled, the regular lights are turned out and the night lighting system, which allows the patients to sleep in comfort but still provides staffwith the ability to function, remains on. Some staff choose to supplement this with a flashlight. Once the patients are in bed there is the putting away of personal patient laundry and the folding of passive restraints. Paper work is checked. One of the duties of the staff is to keep a bowel movement list of patients so that Day Staff can provide any treatment which might be 56 necessary to ensure regularity, although on occasion the giving of suppositories is carried out by Night Staff. Patients are checked on average once per hour, minimally once an hour according to Rhonda Jansen, unless otherwise indicated and then it could be every 15 to 20 minutes. It takes “a good 15/20 minutes” to carry out a round of all patients, unless something requiring particular attention occurs. However, Nursing Staff would investigate every noise immediately. According to Glenda Ferguson, the usual procedure is for the RNs to check on patients or for him or her to do that accompanied by the RPN. Debbie Steele stated that hourly rounds are made after patients are settled and that these are usually carried out by the RN, who on occasion shares the responsibility with the RPN, either by dividing the patients and seeing them separately, or by seeing them together. Whether or not the rounds are delegated, they are still the responsibility of the RN.. Rhonda Jansen testified that rounds were carried out by the “team”, sometimes together, sometimes separately. Morning activity begins at approximately 0500 hours and at that time the medications nurse does a quick check of the medication to see if anyone requires medication at 0600 hours, Following this, both Nursing Staff work together to move patients from their bed to their day-time location. As part of the nightly routine, a night supervisor from Nursing Office comes by twice nightly, once before midnight and once after to check on the well-being of the Ward in general and to discuss any problems which may have arisen. Night of March 5/6,1994 Ms. Robertson testified that on March 5/6th, she was working the night shift and Barry Leeder was on duty with her. She was quite familiar with the patients, having worked on Ward 8 for over three years. She had not worked previously with Mr. Leeder, however, and her only direct contact with him had been to receive a change-over report from him on Ward 8. March 5, 1994 was his first assigned night since his temporary re-assignment, and he was there as Charge Nurse. Ms. Robertson told the Board that she has suffered back trouble in the past and as a result she uses a Harris brace at work. This problem makes her particularly conscious of certain 57 of her job duties involving the lifting and changing of patients. This was not information that she conveyed to Mr. Leeder, nor was there evidence that this informatiion was given to Mr, Leeder by anyone else. Ms. Robertson testified that on that night, she and Mr. Leeder received an extensive report from the Day Shift Nursing Staff [Debbie Steele] and added that the report was given later than 1900 hours due to Mr. Leeder’s lateness. This tardiness was also noted by Ms. Steele. This report drew their attention to a number of patients who had been agitated during the day and to one patient, Patient Y, an elderly, chronically ill patient, who was “seriously ill” and who, it was generally agreed would probably die in the next few days. Mr. Leeder confirmed in his testimony that Patient Y’s condition had indeed been dealt with in some detail. Debbie Steele testified that during the report Patient Y’s condition was highlighted and it was explained why he had been charted. Ms. Steele explained that Patient Y’s vital signs had not been checked by Day Staff and that it was at Mr. Leeder’s discretion whether or not to take them during the night shift. It was her testimony that as of Saturday night (March 5/6th) Patient Y’s condition was not really critical and he would still settle for the night. If anyone had concerns, this patient would have been checked more than once per hour. Patients are normally checked after midnight, for safety, sleeping, breathing and diaper change. Ms. Robertson testified that she would expect a seriously ill patient to be checked a minimum of every fifteen minutes and a regular patient round to be made at least hourly. On March 5, 1994 she had not been delegated any charting responsibilities, that indeed Mr. Leeder had not delegated any responsibilities to her. It was Mr. Leeder’s explanation that he did not delegate medications or nourishments to Ms. Robertson because it they were expected duties for an RPN, and Ms. Robertson had no misgiving or problems as she did these duties. Ms. Robertson did both medications and nourishments that evening, beginning that activity at 2030 hours, and Mr. Leeder did not participate in these, nor did she ask him to. Following medications and nourishment, Mr. Leeder and Ms. Robertson did the “big change” together. She did however, during the patient-care time, take him around and introduce him to all the patients. Once the 58 patients were settled, Mr Leeder testified that they took a short break This was not mentioned by Ms Robertson She then completed her back-up checking system of the Medications Book They then, according to Mr Leeder, began the Bowel Movement List and Mr Leeder entered some notations on the Cardex. Mr. Leeder asked Ms. Robertson to provide him with an orientation to the physical aspects of the Ward which she did, and was pleased to do, particularly since she had helped put together the orientation package that had been prepared for Ward 8. In the middle, Mr. Leeder, according to Ms. Robertson, had a personal call, and she resumed her work in the supply area and the orientation was completed later. It was then time to carry out another round. Ms. Robertson testified that there were some patients who were getting up to go to the bathroom and required some assistance to return to their rooms. She had particular difficulty with one aggressive, ambulatory patient and when she asked Mr. Leeder for help with him, she testified, he only walked past the room and back again to the Nursing Station, and did not respond to her need for help. Mr. Leeder testified that Ms. Robertson did not appear to require assistance and that when she later asked about PRN for this patient, said she would give it if it was “OK with [him],” and he said to go ahead. At one point, she stated, she thought she would have to call a Staff Nurse from Ward 7 to assist her. Prior to 0245 hours she asked him for permission to give this patient PRN medication for his agitation, she testified that the decision was left up to her. Mr. Leeder did not, she claimed, come into the room to check the patient. She also told the Board that when she returned to the coffee room, she found Mr. Leeder sitting on one of the couches by the television, appearing not to be involved in any other activity. She then gave the medication to this patient, knowing that it was important that it be administered early on in the patient’s agitated episode. Ms. Robertson went on to testify that she made hourly rounds during her shift, on her own, and reported to Mr. Leeder following these. When she did, she testified that she found him in the coffee room, on one occasion, lying on the couch, on his side, facing the back of the couch. He was, according to her, not alert and therefore incapable of receiving reports. On another occasion, she called his name and received no response, she repeated his name, and then put her hand on his shoulder and gave her report when she felt he was sufficiently responsive. On other 59 occasions, she stated, he was basically the same After her report, he returned to the position he was in prior to her giving the report. In her opinion, he was sleeping at the time she made four of her hourly round reports. When questioned by a member of the Panel as to how she could be sure that he was asleep, she replied that he was snoring. Although she acknowledged she did not see him during the time that she was doing rounds, she assumed that he was sleeping. As a result, she felt that she was in charge, rather than functioning as a subordinate to a Charge Nurse. In cross- examination Ms. Robertson agreed that sleeping while on duty would be a breach of professional conduct if one were not on an assigned break. She was clear that she considered when there were only two staff members on a ward, that if one sleeps, both the patients and the other staff person would be placed at risk and that she “had a problem with someone sleeping on shift”. Two rounds were made by Supervisors from the Nursing Office. The first was at approximately 2100 hours and was made by Liz Zylstra; the second was made at approximately 0230 to 0245 hours, by Jim Wilson. Ms. Robertson and Mr. Leeder were in the coffee room at the time Mr. Wilson came and Mr. Leeder was awake according to Mr. Wilson.. Ms. Robertson acknowledged in cross-examination that she informed Mr. Wilson that a number of patients was up and about in the Ward, that one of them was agitated, and that she discussed the condition of Patient Y. She did not tell him that Mr. Leeder had failed to assist her, nor that he had been sleeping. She stated that, she could have pursued the matter and if she had chosen to do so would have given Mr. Leeder the benefit of the doubt on the first “refusal,”. It is not, she testified, her job to tell the Nursing Supervisor, but rather, it is her position to tell the Charge Nurse, who, on the night of March 5/6th was Mr. Leeder. She was of the opinion that, had she to do it again, that she would have approached the matter more aggressively. Mr. McFadden, challenged Ms. Robertson as to her knowledge of the whereabouts of Mr. Leeder, while she herself was making rounds. Ms. Robertson was quite sure that “when not on rounds she knew more or less where Mr. Leeder was and that it was highly unlikely that he could have been assessing patients when she was on rounds, as the patients are fairly close to the office. Between the lights out (2200 hours) and the beginning of morning activity (0500 hours), Ms. 60 Robertson testified that she saw Mr. Leeder active on one occasion, that is when he walked past the agitated patient’s room. Patient Y was referred to by Ms. Robertson as “the critically ill patient”. She testified that she went regularly, but did not specify how frequently, to reposition him and to give him mouthcare but that she was not accompanied on any of these occasions by Mr. Leeder, nor did he, to the best of her knowledge, provide any care himself or make any observation of this patient. Mr. Leeder viewed Patient Y as a “terminally ill patient” which seemed to indicate to him a different level of care from that required by a critically ill patient. Ms. Robertson testified that there is a meal break on the night shift and that she prefers to take hers at 0400 hours, which she also did on March 5/6, 1994. The practice is for the person going on meal break to notify the other, which she did. However, Mr. Leeder did not advise her that he was going on a meal break. Ms. Robertson stated that she slept at [her] usual supper break on March 5th, and that [she] was not sleeping at other times. On that morning at approximately 0500 hours both Mr. Leeder and Ms. Robertson prepared the patients for their day and moved them to their day-time locations. 0600 hours medication. Mr. Leeder readied the dirty laundry and then entered the following comment in the Black Book: Ms. Robertson then gave the Sat March5/94 Nights [Patient Y]: No Change Ward quiet 850 C.C. for ***. He entered the following comment on the Daily Ward Report on March 6, 1994: [Patient Y]: Condition continues to remain poor. Remains in bed. A “very brief report”, according to Ms. Robertson, was given by Mr. Leeder in his capacity as Charge Nurse, to the Charge Nurse on the Day Shift. Ms. Robertson did not believe that the 61 report was sufficiently detailed and she testified that she verbally filled in some of the details and reported on the care she had provided for the “critically ill” patient and on the behaviour of the agitated patients. Night of March 6/7,1994 Glenda Ferguson has been an RPN at the Brockville Psychiatric Hospital for the past eight years and has spent all but 6 months of that time working on Ward 8. During that time, she has done nights regularly. She sees the Charge Nurse as the professional who is fully responsible for the care of the patients and for the charting on them, unless the charting is otherwise delegated. A further task, she would expect the Charge Nurse to undertake is the gathering of information and the entering of it in the Black Book. She views the RPN as an assistant, one who undertakes duties when needed or requested by the RN. She testified that she did not have any particular concern about Mr. Leeder coming on to Ward 8. Mr. Leeder, for his part, stated that he had met Ms. Ferguson before on Ward 8 and did not doubt her capability or competence. Ms. Ferguson testified that the shift in question, on which she was teamed with Mr. Leeder, as the Charge Nurse, began as usual, with the report from the Day Shift, this morning given by Rhonda Jansen. On this occasion, particular attention was drawn to the deteriorating condition of Patient Y and the appropriate steps to take, should he die during the shift. She testified that Patient Y was the only patient noted on the Daily Ward Report and that she did not expect him to live through the night. Mr. Leeder noted that he was not told of any new orders for this patient, and, as for the rest of the patient population, there was nothing noteworthy, given that their condition was as stable as possible. The Cardex and Black Book were reviewed as part of this process. Ms. Ferguson distributed medications and nourishments ast Mr. Leeder’s request. As part of this routine, she offered nourishment to Patient Y but he refused it. During the time Ms. Ferguson was distributing medications and nourishments, Mr. Leeder, according to Ms. Ferguson, 62 was putting the male patients in bed and helping them to settle She noted that Patient Y was already in bed and therefore did not require this assistance. Mr Leeder concurred with this and added that he also changed as many patients who were confined to bed, as he could manage without assistance. When medications and nourishments were finished, Ms. Ferguson assisted Mr. Leeder putting the female patients in bed and helping them to settle. It is her estimate that all patients were in bed by 2200 hours Mr. Leeder noted in his report, that they took a break following the patients’ being put to bed. Following this, Ms. Ferguson testified that she carried out some book work to incorporate new or changed medication orders. She also completed that night, the monthly summary on her primary patient and studied for her First Aid course. Ferguson testified that the normal nightly routine, once patients are in bed, is to make hourly rounds and to provide whatever care, such as repositioning, is required. Both Ms. Ferguson and Mr. Leeder noted that the remainder of the night was uneventful, and that Night Supervisors came by twice, at 2230 hours and then between 0300 and 0330 hours. Mr. Leeder noted that one of them came and picked up the census. It was Mr. Leeder’s testimony that Ms. Ferguson carried out her duties without difficulty or confusion. Ms. Ms. Ferguson testified that once patients are in bed and settled and the night lighting is on, it is her habit to use a flashlight. She did not notice other flashlights on the Ward during the night and concluded that Mr. Leeder was not active on the Ward during that period. Mr. Leeder testified that he finds the light adequate for patient care and is not in the habit of using a flashlight. During the period from 2200 hours to 0500 hours, Ms. Ferguson testified that she checked patients hourly, sometimes more frequently and repositioned or assisted them as required. During these rounds she changed and repositioned Patient Y, checked his breathing and made sure that he was comfortable. Ms. Ferguson testified that Mr. Leeder did not assist with rounds and the tasks associated with them during the night. It was her conclusion that Mr. Leeder was not alert at all times during the night. With respect to breaks, Ms. Ferguson testified, it is acceptable to close eyes, read etc., and that it is usual for partners to indicate when they are taking breaks. On that night, she stated, she 63 did indicate to Mr Leeder when she was taking her break, but he did not do the same. She stated that during her forty-five minute break, she “rested her eyes” but was “not asleep” and later that she was never asleep. Her “ears were still listening for things on the Ward.” Ms. Ferguson was asked whether or not Mr. Leeder appeared to be asleep at any time and she replied in the affirmative, stating that between the two rounds of the Night Supervisors, that is between 2230 and 0330 hours, he was in the coffee room reclining on the sofa and snoring off and on. It was Ms Ferguson’s evidence that she was “confident Barry Leeder was sleeping a good hour”, and her confidence came from the fact that her job at night is to observe patients to determine ifthey are sleeping. This took place when she came back from rounds and tried to report what she had done for the patients. She acknowledged in cross-examination that she had not stated Mr. Leeder was sleeping to the Night Supervisors, Jim Wilson and Liz Zylstra, although she had no trouble communicating with them. Following Mr. Wilson’s visit, according to Barry Leeder, Glenda Ferguson had a sleep. At 0500 hours, Mr. Leeder noted in his report, and Ms. Ferguson testified that they began to lift patients out of bed but that Patient Y was too weak and therefore he was repositioned and his bed and nightgown were changed. Ms. Ferguson then did morning medications, according to Mr. Leeder, and he got the laundry ready to go down. At 0630 hours, Mr. Leeder stated in his report, that he took Patient Y’s vital signs noting that he did not have a fever, his pulse and respirations were good, but his blood pressure low. Ms. Ferguson testified that Mr. Leeder consulted her as to whether or not she should check PatientY’s vital signs and she found this unusual, given that he was the RN and she the RPN. Ms. Ferguson stated as well, that she assisted Mr. Leeder in repositioning the blood-pressure cuff, which Mr. Leeder denies, stating that his only difficulty was finding the power switch. In the Black Book, Mr. Leeder entered the following about March 6/7, 1994: Sun March 6/94 Nights [Patient y]: Condition remains poor VIS ** ** ** ** 64 In the Daily Ward Report, Mr. Leeder noted the following on March 7, 1994: [Patient Y]: No change in behaviour Ward quiet at this time. This was also given as part of the report to Day Staff Ms. Steele testified that Patient Y became a patient of note in the Daily Ward Reports when there was a sudden change in his condition which was considered to be more than general deterioration. Had his condition improved then, following a notation of that, he would not have continued to be reported in the Daily Ward Reports. Should a patient’s name no longer appear on the Daily Ward Report, then Nursing Office Staff would assume that improvement had occurred. Investigation and Report Patient Y died on March, 8, 1994 and Danny Seed came into possession of his file in order to take care of arrangements for this deceased patient. On that same day, he was approached by Diane Weatherdon concerning Patient Y’s file and she reported that there was “a discrepancy”, an “obvious lack of documentation” from 1900 to 0730 on the nights of March 5/6 and March 6/7, 1994, the two nights prior to the death of Patient Y. Danny Seed was not present in the Hospital on these two shifts. Diane Weatherdon testified that the lack of charting was brought to her attention by an RN and an RPN on a subsequent shift. She, in her turn, wrote Barry Leeder a letter setting out expectations on the Ward and she testified she thought this would suffice. However, when the matter was raised with Danny Seed, he reacted quite strongly, she recounted, and reported the matter to Linda Peever. Her letter, having been pre-empted, was destroyed by her. She then spoke with Ms. Robertson and Ms. Ferguson, in her capacity as their Head Nurse. The charting which was presented in evidence ran from March 4, 1993 at 0700 hours to March 8, 1993 at 0645 hours at which time Patient Y, now deceased, was taken from the Hospital.. The Progress Notes showed the following activity and observation. The bold notes indicate the reason for the particular charting. 65 March 4th Friday At 1800 Reg. N , the Team Leader for the day shift, entered a detailed report on the period from 0700 hours to 1800 hours, and noted Patient Y’s nutritional intake, bowel movements, procedures undertaken, physical appearance, responsiveness and behaviour. She suggested a new possible problem. End of day shift Reg N. noted that Patient Y had been reviewed by the physician, that no orders were given and that his condition was to be reviewed again on Monday, March 7th at which time medication changes were to be made. End of day shift At 1810 March 5th Saturday At 0600 Reg. N./ RNA [?I noted physical appearance, lack of responsiveness and communication, nutritional intake. She advised that observation of Patient Y should continue. Reg. N. noted Patient Y’s activities, his lack of responsiveness, his physical appearance and behaviours, his nutritional intake, bladder functioning; she finished her report by noting dehydration, advised continuing observation and monitoring of his condition. End of night shift At 1800 End of day shift March 6th Sunday . At 0730 Reg .N. noted Patient Y’s nutritional intake and physical appearance. At 1000 Reg. N., reported an incident and the patient’s condition arising out of a physical reaction experienced by Patient Y while in his bath which was the cause of some concern. Unusual incident At 1030 Reg N. noted Patient Y’s responsiveness, noting that he responded positively to an suggestion that he might like to have a visit from a relative. Visit At 1230 Reg. N. noted that the visitor had called to confirm the visit and that Patient Y 66 “appeared pleased”. Visit At 1240 Reg.N. in his/her capacity as medications nurse noted regular “wine” was withheld and that he was taking fluids poorly. Medications At 1300 Reg. N. charted the fact that Patient Y had been repositioned, and was sleeping long intervals, and that skin and bowel care had been given. At 1500 Reg. N. noted fluid intake, visit and Patient Y’s response Visit etc. At 1800 Reg. N. noted Patient Y’s nutritional intake, bladder output, care given, responsiveness, physical appearance, and vital signs. S/he noted that he was dehydrated, that condition guarded and advised that monitoring should continue. End of shift At 1830 Reg. N. noted medication given and withheld. Medication At 1900 Reg. N. noted a new problem was noted in patient’s N.C.P.. March 7th At 1200 Reg. N. notes patient’s lethargy, responsiveness, fluids withheld, and output, care given, and vital signs. R.N.A. noted that usual medication withheld due to deterioration of patient’s condition. Medication At 1500 Reg. N. reported on physician’s visit, orders received, follow-up and attempts at arranging laboratory tests and pastoral care. New orders 67 At 1700 At 1800 At 1830 At 2000 At 2100 At 2245 March 8th At 0030 At 0210 At 0300 At 0400 At 0500 Reg. N. notes patient sleeping most of time, and fluid intake and response. Reg. N. notes patient's condition, level of comfort, procedure undertaken and vital signs. End of shift Reg. N. notes *** intake, during shift Reg. N. notes vital signs, (a rise in temperature) physical appearance, fluid given and lack of retention, and care given to reduce temperature and provide comfort. Reg. N. notes responsiveness, general condition and temperature R.N.A. notes temperature, medication given and notes to record effect. Medication Reg N. notes physical appearance and temperature and care given. R.N.A. notes care given, medication effect, temperature and advises monitoring to continue. Reg N. notes patient sleeping soundly Reg. N. notes patient sleeping and physical appearance. Reg. N. notes details of death. Following the chart review, Mr. Seed contacted Linda Peever and conveyed "the findings" 68 to her She had been aware of his concerns prior to Mr Leeder’s reassignment to Ward 8 came to Mr Seed’s ofice and reviewed the Progress Notes briefly A discussion ensued amongst Mr Seed, Linda Peever and Jim Wilson In the afternoon, Mr Seed and Diane Weatherdon discussed the “seriousness and the complexity” of the incident. Mr Seed then gathered more information from the file to convey to Linda Peever. She Mr Seed testified that on the following day, March 9, 1994, there were three discussions regarding the incident and during the second of these, Linda Peever contacted Linda Eckhart, (Regional Personnel Administrator) and briefed her on the findings to that point - the lack of documentation in the file, and the concerns of Nursing Staff. Mr. Seed was instructed to contact Mr. Leeder in the afternoon and inform him that he “was suspended with pay”. He indicated to him that the Hospital considered the allegations of lack of documentation on and treatment of a “critically ill patient assigned to his care” serious. Mr. Seed informed him not to report to the Hospital that evening. When Mr. Seed asked Mr. Leeder for directions to his house to deliver his letter of suspension, Mr. Leeder refused to give these and commented that the patient was alive when he left. This comment offended Mr. Seed. Mr. Seed informed him that the letter would be sent by registered mail. The contents of Mr. Leeder’s part of the conversation were conveyed to Ms. Peever and Ms. Eckhart and it was at that point that Linda Peever instructed Danny Seed to investigate the incident in accordance with Section 22 (1) of the Public Service Act. Mr Seed stated that he does not usually do investigations and while he may have undertaken some before, he had never done one in such detail previously. [At this point there was no suggestion that Mr. Leeder had been sleeping.] Mr. Seed initiated the investigation by contacting those members of Nursing Staff who had been working on the weekend in question, and arrangING to interview each. They were informed at that time that they had a right to union representation. Meetings with Glenda Ferguson The first meeting was held on March 10, 1994, and was attended by Danny Seed, Glenda 69 Ferguson, Diane Weatherdon and David MacDougall (Chief Steward) Mr Seed asked Ms Ferguson to provide a written report of the events of her tour of duty of the night of March 6/7th, and she in turn asked for a list questions to assist her. Mr Seed was willing to comply with this request but it did not come to fruition since, there was an objection from Mr. MacDougall . Ms Ferguson prepared a report of her activities on the night of the 6/7 March 1993 and other events which took place on that shift prior to the second meeting. A chronological summary is found at Appendix A. At this meeting the prepared questions were put to Ms. Ferguson and the following responses she gave are particularly germane She stated that during the time that she was dispensing medications that Mr Leeder was either in the coffee room or out on the Ward. Mr. Leeder did not assign her any other duties than medications. She changed or repositioned 1 or 2 patients each time she did a round and this was done without the assistance of Mr. Leeder It was Ms.. Ferguson’s opinon that the only patient requiring charting was Patient Y and she responded that she was not requested to chart or document on any patient during the shift. Ms. Ferguson was asked if pertinent information was given to the incoming day shift and she responded that she “didn’t hear all the report” and concluded there was not. She was asked whether she offered any input, or whether she was asked to provide patient information, and replied that ‘’while [she] was in the room but by non-verbal cues from Mr. Leeder.” She recalled that the Cardex was used and that each patient was discussed but stated that she was not present for any discussion about Patient Y. Ms. Ferguson was asked whether or not she felt uncomfortable at any time during her duty or whether she felt that her health and safety was being compromised and she replied in the affirmative, commenting that: ... in the fact that you are working with staff which don’t communicate with you or staff unfamiliar with the surroundings. The second meeting was held on March 1 1, 1994 and in preparation for the meeting, Mr Seed had a set of questions ready. In attendance as well as Mr Seed and Ms. Ferguson were Diane Weatherdon and Margaret Halladay (Union Representative). Although the atmosphere was initially reflective of the anxiety and apprehension of some of the participants, Mr. Seed’s impression was that as the meeting progressed, those involved felt more comfortable and that the information was freely given. He was satisfied that his recording of Ms Ferguson’s answers 70 accurately reflected her responses. [There was no indication at this point in time of Barry Leeder’s having slept.] Meeting with Andrea Robertson This meeting was held on March 1 1th in the afternoon (1330-1408 hours) and was attended by Danny Seed, Diane Weatherdon, Andrea Robertson and Margaret Halladay (Union Representative) It was held prior to Ms. Robertson’s report having been received. Mr. Seed testified that in this meeting, the atmosphere was distinct fiom the meeting with Ms. Ferguson, in that Ms Robertson appeared to be “quite self-assured, not nervous or anxious.” Mr. Seed posed the same set of questions to Ms. Robertson as he had posed to Ms. Ferguson and believed that his recording of her responses was “verbatim”. [Mr. Leeder’s sleeping on the job was not mentioned during this interview.] Mr. Seed testified that Ms. Robertson seemed to be concerned that the information should be complete and that he was taken aback when, on three occasions during the questioning, she interrupted him saying “if you ask me the right questions, I’ll give you the right answer”. Ms. Robertson handed in her written report at the end of the meeting and, also asked Mr. Seed if there would be further questions, and whether or not the situation was to go further. He responded that there would be further questions and that the investigation probably would go further. Ms. Robertson presented a written chronological report of the shift at the request of Mr. Seed It is set out at Appendix B.. She responded to certain questions and the pertinent responses are the following. Mr. Leeder was present for the change of shift report. He did not assist her with medications or nourishments, although it was normal for her to do medications on her own. He did not delegate the medications duty to her. She made rounds every hour. Mr. Leeder did not. Mr. Leeder did not see the “critically-ill patient” every hour. Ms. Robertson stated that she offered assistance, although her orientation assistance was interrupted and not overly enthusiastically received. During rounds, she discussed Patient Y. Mr. Leeder did not assist her with any of the patient changes or repositioning that she was required to do during the night She did not see him during 71 the time she was making rounds and could not vouch for his whereabouts. Both Ms Robertson and Mr. Leeder undertook the morning care of patients and bed stripping. Ms. Robertson was not aware of any occasion on which the vital signs of Patient Y had been taken on the shift. Ms. Robertson did charting on one patient, but not on Patient Y. She was not asked to do any charting. During the morning change of shift, Ms, Robertson answered that while Mr Leeder gave a general report, that she augmented the report by filling in the details. Ms. Robertson was asked if she felt uncomfortable or that her health and safety was compromised during the shift with Mr. Leeder. She replied: Well, when you feel when you were in charge instead of being a subordinate, it can be a rather dubious feeling. Follow-up Telephone Interviews with Andrea Robertson and Glenda Ferguson Mr. Seed conducted these brief interviews with Andrea Robertson in the morning and Glenda Ferguson, in the afternoon, on March 2 1 st by telephone using the speaker phone and in the presence of Diane Weatherdon and Margaret Halladay. He decided to do these when he concluded, following the interviews, that “there was more to this than what [he] was getting”. The questions were designed to clarify and elicit further information. In her follow-up interview Ms. Ferguson indicated that, while Mr. Leeder was on time, he was not alert and awake during his 12 hour tour of duty, and that he appeared to be sleeping. Ms. Robertson answered that she did not believe that Mr. Leeder was on time, nor did she feel that he was alert and awake during his tour of duty on March 5, 1994. Ms. Robertson was asked whether Mr. Leeder slept while she attended to the patient care needs of all the patients on Ward 8, and she replied that she did see him sleep and that he was not with her during the rounds which she made. Ms. Robertson testified that she would not incriminate anyone and did not want to accuse Mr. Leeder of sleeping in writing, that she had concerns about Mr. Leeder’s sleeping on duty and lack of assistance and said she wished to convey those concerns to Diane Weatherdon and Danny Seed, in person, in part, to see if there were any extenuating circumstances which would explain his sleeping. Her intention, however, was thwarted because initially she received a 72 call asking her to do a report because of a concern about charting on the night she worked with Mr. Leeder, and then when she returned to work on March 1 1, 1994, she was to meeting with Danny Seed, the Nursing Coordinator to respond to some questions. After this meeting, she was told by Diane Weatherdon that there would be an opportunity for her to sit down and talk about it, As part of the process, she was informed by Danny Seed about the “sleeping” and was, in turn, asked “outright when [she] saw him”. Meetings with Rhonda Jansen and Debbie Steele, Shift-Change Charge Nurses Debbie Steele prepared her report concerning change-over from 1830 to after 1900 hours, on March 5, 1993, around March 8/9th and met with Danny Seed on March 21, 1994, along with Diane Weatherdon and Margaret Halladay. Of special note were the following: Barry Leeder arrived several minutes after 1900 hours; Barry Leeder indicated he was familiar with the routine; Debbie Steele told Barry Leeder that the only patient they had on Ward Report was Patient Y and that they had not been taking Patient Y’s vital signs “at this time” and “it was up to his discretion”. In her responses, she noted that Mr. Leeder did not ask questions, and simply sat there and nodded in response. Prior to meeting with Danny Seed, Diane Weatherdon, and Margaret Halladay, on March 1 1 , 1994, Ms. Jansen prepared a one-page report concerning the change-over at 1900 hours on March 6, 1994. Ms. Jansen reported that Barry Leeder and Glenda Ferguson arrived at 1900 hours for shift change report and she noted that special emphasis was placed on the condition of Patient Y who had taken a “weak spell during the a.m.” and whose next of kin had been notified and visited. Information was also provided about particular procedure in event of death. Responses from Jim Wilson and Liz Zylstra, Night Supervisors Both night supervisors were asked to respond in writing to a series of prepared questions. Mr, Wilson noted that on both occasions when he was on Ward 8, from 0415 to 0500 hours on March 6th [5] and from 0320 to 0350 hours on March 7th [6]. Mr. Wilson’s responses indicated that Mr. Leeder identified no problems or concerns generally, or with Patient Y in particular and 73 indicated on both nights that everything was fine and quiet. During the time that Mr. Wilson was there, he indicated that Mr. Leeder was “sitting with the PNA in the staff room. He was alert and sitting in a chair; he didn’t appear tired.” Ms. Zylstra reported that at the time she made rounds of March 5, 1993, that it was after 2100 hours and that at the time Barry Leeder and Andrea Robertson were putting the female patients to bed and were both busy. They did not report anything requiring attention . On the following evening, her rounds were made at approximately the same time and Mr. Leeder was engaged in the same activity as on the previous night although on this occasion, he was working with Glenda Ferguson. There was a conversation about the general state of things and she was informed (does not say by whom) that Patient Y ‘’was again deteriorating as he had done many times in the past.” She recalled talking about “a bedsore he had had for a long time and that it was healing over again.” They queried, she wrote, whether he perhaps had a pocket of infection underneath the tissue as he had an elevation.” She did not recall (on March 28, 1993) being told that he was gravely ill, or requiring any further attention”. Meeting with Diane Weatherdon, Head Nurse Ms. Weatherdon was asked a series of prepared questions during her meeting with Danny Seed on March 21, 1993 from 0945 to 1015 hours. She had waived her right to union representation, and no one else was in attendance. The following pertinent information was provided by Ms. Weatherdon. She was ask whether Mr. Leeder was “upset or pleased with his reassignment from the Nursing Floor Pool to Ward 8”. She replied that He certainly did not appear pleased with his reassignment and he quoted verbatim “I don’t want to be here.” Mr. Seed put the following question to her: Prior to his reassignment to your ward were you aware of any potential problems this individual may have? She responded that she was and was asked to elaborate and provided the following response: His reputation has preceded him and I was aware of some difficulties he encountered in other areas. I did check his corporate file given his history etc. However, I did emphasize (with difficulty) that we need to give the guy a chance to prove or disprove of what has been said about him. 74 She was also asked if any of [her] assigned staff on Ward 8 had come forward or approached [her] with a concern regarding Mr. Leeder’s deportment and professional qualities ? To this she replied Yes, that’s just not the two in question [Robertson and Ferguson] approximately 314 to all of my staff were concerned and upset about him coming here. With regard to the shift change, Mr. Seed asked if Mr. Leeder [gave] a comprehensive report on all patient’s [sic]conditions at the change of shift report to [her] on Monday, March 7 Her reply was that He did what was expected but he kept looking at his coworker, as if to say, am I doing ** right, which one was that etc. and she filled in all the gaps for him. Finally Ms. Weatherdon was asked At this time, is there anything else regarding these incidents and this investigation that you would like to convey to me at this time ? She gave the following response: Not at this time, but if further information does not come to light, I feel compelled to divulge additional information. Maybe it will be hersay [sic] info and it was told to me by staff per telephone Meeting with Barry Leeder On March 22, 1993, after Mr. Seed had received seven of the eight reports, among them Mr. Leeder’s, and conducted interviews with five of the six staff members he intended to interview, the first meeting was held with Barry Leeder, he being the last to be interviewed. The meeting was attended by Barry Leeder, Danny Seed, Jean Mills (Manager of Nursing Services), David MacDougall, and Bud Eyre (RPN on the Forensic Service, as an OPSEU member). Mr. 75 Seed was unaware that Mr. Eyre would be attending but he did not object to this The same process of prepared questions and noted answers was used. When asked if he had arrived on time for duty on both evenings, Mr Leeder replied in the affirmative. He was not able to recall the names of his co-workers on the two evenings, approximately two weeks earlier nor did he recall the clinical information passed on to him about Patient Y However, he pointed out that “his diagnosis wasn’t provided for [him] on the clinical report although he was notified that Patient Y’s condition “had worsened slightly”. Mr. Leeder explained that on both shift changes he had received a report, most of which was usual, the exception being the special concerns about Patient Y, in particular his religious concerns. Mr. Leeder took exception to the terminology applied to Patient Y by Mr. Seed, as that of a “critically ill patient”. In his judgement, the proper terminology to have applied to Patient Y at that period, was that of a “terminally ill patient”. Mr Leeder was asked if he delegated duties to his co- workers and he indicated that he and they knew their duties and, after he assigned medications to them, “the remainder of the duties were shared by [them], and they assisted each other. He told Mr. Seed that during the time that his co-workers were doing medications and nourishments that he was doing “the change”. As to the hourly rounds, Mr. Leeder stated that they had carried out the rounds, and that included Patient Y who was repositioned and changed twice in an eight hour period, and that rounds were not made during the two visits of the Night Supervisors since they did not require them, nor did they ask for any clinically relevant information concerning the patients. With respect to charting Mr. Leeder indicated that he did not chart on any patients, nor did he delegate any charting, and regarding Patient Y in particular, his perception of the situation was that this patient was terminally ill there was no change in his condition during the two shifts Whlle he did not put information onto the patient chart, he did note patient care and/or nursing activity in the Daily Ward Report and used the Cardex and the Black Book as part of the report for incoming day shift. He took Patient Y’s vital signs on one occasion, and that was at 0630 hours on March 7, 1994 according to his response to Mr Seed. According to Mr. Leeder, he did not sleep on these tours of duty and was awake and alert during those periods. 76 After reviewing the results of his investigation thus far, Mr. Seed concluded that further deliberations should take place and he made this recommendation.] He testified that his particular areas of concern were Lack of documentation Conduct of Barry Leeder while in charge on 2 shifts based on the inference of his colleagues that he had slept at times. The risk that this conduct poses for patients. The dismissal of Mr. Leeder a week later was the outcome. No discipline for failure to chart or for other reasons was meted out to others. Decision Ward 8 Incident The Board has reviewed the evidence and considered the arguments presented by Counsel and has arrived at the following findings and conclusions: 1. 2. 3. 4. Mr. Leeder arrived late for his Night Shift on March 5, 1994, although the lateness was not major. His tardiness, in the Board’s opinion, is not of major consequence, although that does not make it unnoteworthy. The Board believes that punctuality is desirable, important in the workplace, and when repeated, may be indicative of poor organization or attitude. Mr. Leeder failed to recall during the investigation eighteen days later, the names of his eo-workers on the two nights in question.. This failure on his part during a stressful period is understandable and is certainly not a lapse which should attract discipline. Mr. Leeder carried out no rounds from 2400 hours to 0500 hours on the nights in question and his failure to take any responsibility for these rounds is a failure on his part to carry out the duties and responsibilities of both his position as Charge Nurse and his profession as a Registered Nurse. Mr. Leeder’s Daily Ward Report on March 5/6 1994 consisted of ‘no change for 77 5. 6. 7. 8. patient, ward quiet and a medication note For March 6/7, 1994, it consisted of Patient Y’s vital signs and a note that his condition remained poor showed as well that Mr. Leeder had not delegated charting to either of the RPNs. His charting on these two nights was both inadequate and unacceptable This was in part due to his lack of involvement with Patient Y, although there is nothing to suggest that had he been involved more with this patient that he would have recorded his activities and Patient Y’s condition in the Progress Notes. Mr. Leeder did sleep for periods of time on March 6 and 7, 1994. Although he denied that he was sleeping, the Board has concluded, based on the evidence of his two co-workers that he was snoring, that he indeed was sleeping for a portion of time not defined by him as his break. responsibilites constitutes a dereliction of duty on the part of Mr. Leeder. The care offered to Patient Y was less than minimal and in the opinion of the Board was uncaring and neglectful on his part. This does not mean that this patient’s care on the nights in question was lacking, but its adequacy is only due to the attention paid by the RPNs. Mr. Leeder’s communication with his peers was inadequate. He did not inform his co-workers of his break times, and did not, according to the evidence, take the initiative in communicating with them around matters on the Ward. Mr. Leeder failed to provide supervision or delegation of tasks to the RPNs working under his supenision on the nights in question and in general did not assume charge of the Ward as he should have done as Charge Nurse. The evidence In the Board’s view, this neglect of his During its consideration of the evidence, argument and the consequences for Mr. Leeder the Board gave thought to a number of related issues and these are set below. The Board has a number of concerns which have arisen out of the evidence which it wishes to draw to the attention of the parties. They are the following. The Responsibility of Being in Charge 78 The Board has concluded that there was a failure on Mr Leeder’s part to take on the role of Charge Nurse and to live up to the expectations of responsibility, leadership and participation which that role involves That is not to say he did not undertake some of the tasks which are duties of that role It may be that his unhappiness and dissatisfaction with his assignment contributed to his poor performance on these two nights, but as a professional, he is expected to rise above this. The patients who are assigned to his care, in the chronic psychiatric setting are almost totally dependent on Nursing Staff for their well-being and basic physical needs. Mr. Leeder’s Communication Skills The Board views Mr. Leeder as a rather reserved and patient person who is not particularly demonstrative or given to small talk It could be said that he is not very communicative This was borne out by his demeanour and conduct at the hearing. This characteristic is not in and of itself a fault. However, verbal and written communication is a crucial aspect of a nurse’s work. The Board believes that Mr. Leeder would be well advised to seek assistance with a view to improving his workplace communication skills, both written and verbal. With two exceptions, the quality of the charting which Mr. Leeder did do, left much to be desired. On one occasion, when he charted the difficult behaviour of Patient X and recommended the cessation of visits, he was both articulate and assertive. He employed well-selected vocabulary that conveyed the message with clarity and sublety. We know from this and from Mr. Leeder’s Statement of events occurring weekend of March 5 and 6, 1994. that Mr. Leeder is capable of good, observant, legible charting and believe that he should follow his own good examples in future. We also recommend that he review the College of Nurses’ guidelines and the Brockville Psychiatric Hospital procedures set out in this decision the charting of others for content, detail and form and he will find improvement suggestions therein. It is the view of the Board that the Employer should also provide Mr Leeder with feedback so that he can know where he needs to improve and then act upon it The Employer does not appear to have done this in the past. Mr. Leeder’s Reputation The Board has concluded that Mr. Leeder’s poor reputation in the workplace was created, 79 in part at least, by the Employer following the September 10, 1993 incident. This placed an unfair burden on Mr. Leeder and the Board believe this has affected his functioning in the workplace It is important, therefore, that the Employer take some responsibility for restoring this reputation and for letting it be known, that Mr. Leeder was not responsible for the incident of September 10, 1993 and for taking steps to assist him to reintegrate in a positive way into the workplace. It is important for the Employer to remember, that Mr. Leeder’s performance was not put into question until the incident of September 10, 1993 and the Board has found that the infractions at the time of that incident were not deserving of the reputation which appears to have been created through inflation, rumour and isolation. Sleeping There is the question of what constitutes sleep - closing eyes, dozing, napping, catnapping, forty-winks, nodding off, and sleeping deeply. Sleep is defined in the Concise Oxford Dictionary as a bodily condition such as that which normally recurs for several hours every night, in which nervous system is inactive, eyes closed, postural1 muscles relaxed, and consciousness nearly suspended. Sleeping could be said to be an occupational hazard on the twelve-hour night shift at a psychiatric hospital. It is quiet, the lights are down, the patients asleep and the shift is long. However, it must be guarded against in the workplace. The Board is of the opinion that the Employer should consider a rule in this regard and specifically with respect to breaks and sleeping. Reporting of Infractions The Board was concerned about the practice of covering up the infractions committed by one’s colleagues. This response is sometimes prevalent in venues where there is a punitive management style as opposed to a problem-solving one, Robertson and Ms. Weatherdon regarding the sleeping disturbing. Ms. Robertson told Mr. Seed “ask me the right question . . .” and Ms. Weatherdon said that might have to divulge certain information if the matter went further. Surely, if one observes a colleage who is committing an It found the responses of Ms. 80 infraction, it makes sense to draw it that person’s attention and let it be known that s/he does not have your approval. It is worth remembering that many individuals equate silence with condonation. Putting the person on notice, quite straight forwardly that you will have to report a recurrence, is being fair, above board and open about a problem. Failure to to point out unacceptable practices can put both patients and staff at risk. The Board recommends to the parties that they consider having some discussions around a positive approach to this sensitive area. Investigation The Board did have certain concerns with the investigation. While Ms. Peever may consider that Mr. Seed is a fair person, that does not deal with the perception that he is part of the service where the investigation is taking place. Independence is valuable in investigation. Secondly, limiting the interview to prepared questions is restrictive and has a steering effect. Their is a tendency to ask the specific questions to which one wants answers thereby excluding other information which might have been forthcoming under a broader and less rigid approach. It is important in an investigation to distinguish facts from conclusions. Both Mr. Seed and Mr. Portieous found as a fact that Mr. Leeder was negligent and unprofessional. In fact, this seemed to be the first “fact” they found. The confusion can be illustrated with the following example. An investigator finds, as a fact, that a nurse has failed to chart As a result of this finding, she concludes that the nurse was careless or negligent.. The failure to chart is the fact, the carelessness or negligence, the conclusion. Response to Patient Y’s Condition Patient Y was a chronic patient in his late eighties who suffered from a psychiatric condition of long standing, as well as a general physical deterioration from aging. He had reached the stage where he was almost totally confined to bed and was refusing nourishment. It was agreed and understood by the Nursing Staff that he would very probably die before mid-March 1994. He had also taken a slight turn for the worse as a result of a “spell” he took in the whirlpool bath on Sunday March 6, 1994. Patient Y was referred to variously as “seriously ill” 81 “critically ill” and “terminally ill” Mr Leeder distinguished between critically ill and terminally ill and suggested a lesser level of care was required for the terminally ill patient In spite of Ms Jansen’s evidence concerning full-charting, there was no documentary or other evidence to support her belief that “full charting” had been ordered The Board takes the view that Patient Y was terminally ill, and for a period of a few hours after his “spell” in the bath was appropriately designated as ‘‘critically ill” by Debbie Steele. However, the Board takes exception to Mr. Leeder’s view that a terminally ill patient requires a lesser level of care than a critically ill patient. While there may not be the sense of urgency that is present with the critically ill patient, it is, in the Board’s opinion, important to remember that the terminally ill patient is living out the last few weeks, days, or hours of his or her life and that condition deserves particular respect and supportive physical and emotional caring.. It is also worth remembering that for many of the patients in this setting, it is for them, home and they may have had more contact with Nursing Staff than with relatives, and thus perceive the Nursing Staff as a substitute family. The Board was very concerned that Mr. Leeder, having had his attention drawn to Patient Y did not see him promptly after his arrival on the Ward and did not check on him and provide regular palliative care for this dying man. That care could have been, on occasion simply comforting human contact. The fact of the matter is that Mr. Leeder for all intents and purposes, paid him very scant atttention. The fact that Patient Y was not demanding attention is no reason why he should not have received it from Mr. Leeder. It is not as if there were unreasonable demands on his time during those shifts. Care was provided by Ms. Robertson and Ms. Ferguson, but it is not good enough to simply assume that those one is supervising will take care of things, particularly when the duty has not been specifically assigned and even if it were, that does still not relieve the Charge Nurse, in this case, Mr. Leeder, of the duty of care. . Penalty in Ward 8 Matter The Board has decided that Mr. Leeder’s conduct and lack of adequate nursing care, is serious. It is of the view, however, that dismissal is too severe a penalty and that a lengthy suspension will impress upon him the duties and responsibilites which go with the position of 82 both an RN and an RN assigned as a Charge Nurse or Team Leader. The suspension will be for a 5 month period. Further, in order to assist Mr. Leeder in maintaining an acceptable standard in the workplace, he is to receive a Performance Review at the end of one month, then at two, three and six months, before going onto the standard Performance Review program. Outcome Mr. Leeder requested reinstatement to the Forensic Ward. He was moved off this ward, according to Ms. Peever, because he was a threat to security. The findings of this Board do not bear this out. Mr. Portieous indicated that his removal from the Forensic Ward, would give him time to think. He has had that time. Mr. Leeder had a satisfactory performance over a period of several years on the Forensic Ward. A return to Ward 8, would not provide Mr. Leeder with a reasonable opportunity to win back the trust that has been lost and would place him in a very negative seeting. If he was unwelcome in March, 1994, the chances of his being welcome now are, unfortunately, slim.. It is the order of this Board, for the above reasons, that Mr. Leeder be returned to the Forensic Ward by November 30, 1995, subject to a satisfactory Performance Review Should the review not be satisfacctory by this daate, he should return following his first satisfactory review. This Employer is not to apply a different standard to Mr. Leeder in carrying out the reviews than it applies to others. Summary of Order The Board makes the followng order with respect to the two incidents: that Mr. Leeder’s reprimand be reduced to a letter of counsel for a period of three months following and that it remain in his file until January 3 1, 1996 that the parties arrive at a means of correcting the information which has been provided to the College of Nurses, about the Forensic Ward incident and that they consider retraction as one possibility; this correction should also be made in his (a) (b) 83 personnel file that the letter of reprimand be removed from his file immediately that the dismissal be replaced by a suspension of 5 months without pay. that the letter of dismissal be removed from his file that retroactive pay without interest owing to Mr. Leeder is to be provided to him as soon as possible. that Performance Reviews of Mr. Leeder, with constructive follow-up take place at the end of two weeks, then , at the end of one month, one month, two, three and six months, before resuming the standard performance review schedule. The Board will remain seized of this matter in the event that the parties require assistance with its implementation. "I Dissent" (diss to follow) D. M. Clark, Member 6, 1995 J. Carruthers, Member 84 Appendix A Glenda Ferguson’s Chronological Report of Activities on March 6/7, 1994 1900 Report given by Rhonda Jansen, RN from the day shift and emphasis given to Patient Y’s condition. Both she and Mr. Leeder were present. 1930 Ms. Ferguson prepared medications and nourishment as requested by Mr. Leeder. 1945 Began medications and nourishments at south end; Patient Y refused juice, was repositioned and given palliative care. Ms. Ferguson observed that he made eye contact but gave no verbal response. 2050 Continued medications and nourishment to the north end and then replaced to medications cart. 2130 2130 With Mr. Leeder, did HS [?I care and put female patients to bed. This involved toiletting, repositioning, changing incontinent patients and putting those in geri- chairs to bed 2230 Liz Zylstra, from the Nursing Office came on hospital rounds and the general condition of the Ward was discussed. Both Mr. Leeder and Ms. Ferguson took part. 2245 Ms. Ferguson checked tub rooms, restraints and patient clothing and stocked change carts. 2300 Ms. Ferguson asked Mr. Leeder to assist her to put a patient to bed with restraints, and he did so. 2320 Ms. Ferguson asked Mr. Leeder to make up the BM sheet for the morning. She noted that he required assistance, in that he was not aware of how to do this. 2330 Ms. Ferguson made hourly rounds of all patients, repositioning, toiletting and changing incontinent patients as needed. She assisted patients back to bed, encouraging to settle and reported their condition to Mr. Leeder. She then wrote her summary on her primary patient, completed the re-order medicine check and ordered supplies from pharmacy. When this was complete, she continued her study of her St. John’s Ambulance First Aid course material. 2400 Ms. Ferguson made round of patients. 85 -.-c- Mr. Leeder began to recline on the couch 01 00 Ms. Ferguson made round of patients Mr. Leeder continued to recline on couch 0200 Ms. Ferguson made a round of patients Mr. Leeder ceased residing on the couch. 0300 Jim Wilson made his ward rounds with Mr. Leeder and Glenda Ferguson picked up his report. 0330 Mr. Leeder resettled on the couch 0400 Glenda Ferguson having completed round (not clear which) told Mr. Leeder that she was going to take her break and put her “feetup and rest for about 45 minutes”. 0445 Made rounds once again of all patients 0500 Ms. Ferguson checked medications to be given at 0600 hours. 05 15 Ms. Ferguson reported on the condition of the patients but received very little verbal response. It was her impression that he did not take note of her report. 05 * * Ms. Ferguson spoke to Mr. Leeder about the necessity to start morning duties. They undertook this together, making the patients ready for day staff, that is repositioning into geri-chairs, and preparations for the day. The beds were stripped as well. Patient Y was changed and repositioned in bed. At this time Mr. Leeder asked “if he should chart on Patient Y and take his vital signs and Ms. Ferguson responded that he should definitely do both. 0630 Ms. Ferguson gave medications as ordered and assisted Mr. Leeder in taking the vital signs of Patient Y. She noted that she corrected the blood pressure cuff so that the vital signs would be accurate. Following this , she cleaned up the coffee room and made tea and coffee for the incoming staff 0700 the Report to day staff began and Ms. Ferguson assisted as needed. She then emptied a patient’s urine bag, and recorded output. 0720 Ms. Ferguson signed off the medications regime 0730 Shift ended. 86 Appendix B Chronology of March 5/6 1994 1900 Ms. Robertson and Mr. Leeder received the report from day shift staff Ms. Robertson wrote up the B.M. lists for the next day. 1930 Ms. Robertson went into medications room to prepare for administering medications. 1940 Ms. Robertson began at the south end to administer medications; Check Patient Y’s condition, saw him take juice and repositioned him. Toileted another patient. 2030 Began to administer medications to female patients to 2100 Supervisor made rounds 2100 Ms. Robertson, along with Mr. Leeder, did h.s. ? care, put patients to bed, repositioned to 2200 2200 patients, changed draw sheets. Ms. Robertson competed the patient’s personal laundry, checked for medication error; Showed Mr. Leeder around ward Checked ties and patient clothes Toiletted several patients, provided juice and cookies to a patient; Prepared an audit Did patient rounds hourly and reported to Mr. Leeder Provided patient care while Mr. Leeder and Mr. Wilson were conversing during Mr. Wilson’s rounds. to 0200 0200 Studied “Grasp” Manual papers 0400 Told Mr. Leeder ‘‘I was going to put my feet up for 1/2 hour to 45 minutes”. 0500 Checked on medication to be given at 0600 hours 05 15 Began to get patients in luminex chairs for the day to 0530 87