HomeMy WebLinkAbout1994-1682.Ohrt.96-09-30- ttik:ICE
EMPLOY& DE LA COlJlWNNE
DE L’ONTARK)
n n BOARD
COMMISSION DE
SETTLEMENT RliGLEMENT
DES GRIEFS
180 DUNDAS STREET WES’I; SUITE 2100, TORONTO ON M5G 128
180, RUE DUNDAS OUES’I; BUREAU 2700, TORONTO (ON) M5G 128
BETWEEN
BEFORE
FOR THE
GRIEVOR
FOR THE
EMPLOYER
HEARING
TELEPHONElTiLiPHONE :
FACSIMILEIT~L~COPIE :
(416) 326- 1388
(416) 326-1396
GSB # 1682/94
OPSEU # 94F403
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Ohrt)
- and -
Grievor
The Crown in Right of Ontario
(Ministry of Health)
Employer
R. L. Verity Vice-Chairperson
M. Bevan
Grievance Officer
Ontario Public Service Employees Union
C. Nikolich
Counsel Legal Services Branch Management Board Secretariat
August 23, 1995
October 17, 23, 1995
November 22, 29, 30, 1995
December 5, 6, 1995
January 30, 31, 1996
February 19, 20, 21, 1996
July 16, 17, 1996
2
DECISION
Werner Ohrt was dismissed from his employment as a Registered Practical Nurse at
London Psychiatric Hospital on October 7, 1994 for alleged patient abuse. At the time of
discharge, he was an unclassified employee who, since 1987, had been employed under a
series of term contracts. In a grievance dated October 14, 1994, Mr. Ohrt alleged dismissal
without just cause. By way of relief he seeks full remedial redress.
The allegations arise from the grievor’s conduct during an incident on the afternoon
of September 20, 1994 on Ward G-2, an intermediate unit. What actually transpired
between the grievor and the patient was the subject of many conflicting versions of events
at the hearing. The grievor and patient “A’ gave totally different accounts as to how the
incident started. On that issue there was no eye witness. Patient “A” suffers from manic
depression and substance abuse problems. He has a history of frequent admissions to
hospital and is prone to leave on his own accord. By all accounts the patient can be
unpredictable, volatile and aggressive.
Regarding the incident itself, this much is agreed: on the day in question, patient
“A” was delusional, had refused PRN medication, had threatened to kill his psychiatrist Dr.
Milo, had been placed on involuntary status and therefore was confined to the ward.
Shortly before 4:00 p.m. the patient attempted to leave the hospital and a struggle ensued
between the grievor and the patient. The grievor placed patient “A” in a headlock, and
within seconds an emergency code 711 was activated which signalled all available staff to
3
the scene. The grievor was instructed to “ease off” or “let go” but he continued to maintain
the headlock. Shortly thereafter, he released the restraint and freed himself from the
patient. Patient “A” uttered a torrent of abuse, regained his standing position and, while
in the process of being restrained by other staff, lunged towards the grievor. The patient
was taken to seclusion on Ward H-2 where he had to be further restrained on two separate
occasions. Patient “A” was injured.
The incident provoked a number of separate proceedings. A complaint was lodged
by patient “A” that he had done nothing wrong and that he had been attacked by the
grievor. His complaint was promptly investigated by the London police. It was common
ground that no charges were laid by the police apparently as a result of conflicting
statements as to what had taken place. Head Nurse Joy Ross, however, laid a charge of
assault against the grievor under s.266 C.C.C. This charge was subsequently dismissed on
April 24, 1995 following a trial in London before Judge A.J. Baker of the Ontario Court
(Provincial Division). Further, allegations against the grievor before the Discipline
Committee of the College of Nurses of Ontario were withdrawn pursuant to the terms of
a Memorandum of Settlement dated February 13,1996, without admission of liability on the
part of the grievor.
At the outset it should be stated that the grievor was previously discharged on April
6, 1988 for alleged patient abuse and subsequently reinstated by a decision of the Grievance
Settlement Board #0250/88, (Dissanayake).
4
In the instant matter, the hospital conducted an internal investigation. Following a
pre-disciplinary hearing, the grievor was given written notice of dismissal on October 7 by
Varouj Eskedjian, then Assistant Administrator of the London Psychiatric Hospital. The
stated reason was “patient abuse”. The letter contained no details of the alleged abuse.
The first question for determination is whether an employee offence occurred, that
is, whether the grievor physically abused patient “A”. If the answer is in the affirmative, the
second question is whether the penalty of discharge was reasonable in the circumstances.
See generally, William Scott and Co. Ltd. and Canadian Food and Allied Workers Union,
Local P-162, [1977] 1 Can. L.R.B.R. 1 (Weiler).
A few words should be said about the standard of care expected in a hospital setting.
In that regard, I adopt the rationale of Arbitrator Greyell in Re Baptist Housing Society
(Grandview Towers) and Hospital Employees’ Union, Local 180 (1982) 6 L.A.C. (3d) 430
where he states at p. 437:
A much higher standard of conduct is expected from employees in the health care field than in other
occupational fields. In this industry arbitrators are required to have regard not only to the interests of the
grievor and of the employer but also must have regard to the public interest. Both employer and
employee are reposed with a public trust in which they are held accountable.
The public trust is onerous. In broad terms it is a charge of responsibility for the physical and emotional
comfort of a member of our society who is unable to live independently. The institution and no less its
employees, in addition to regular duties assume a role which may best be described as similar to that of
a “surrogate” family...
Before turning to an assessment of the facts, it is useful to address the standard of
5
proof required of the employer. The parties agree that where serious misconduct is alleged,
as in this case, the burden of proof on the employer is to satisfy the arbitrator as to the
truth of its allegations on clear and cogent evidence. In that regard, it is instructive to
repeat the guidelines of Mr. Justice O’Leary in Re Bernstein and College of Phvsicians and
Surgeons of Ontario (1977), 76 D.L.R. (3d) 38, 15 O.R. (2d) 447 (Ont. Div. Ct.) where he
states at p. 61:
The important thing to remember is that in civil cases there is no precise formula as to the standard of
proof required to establish a fact.
In all cases, before reaching a conclusion of fact, the tribunal must be reasonably satisfied that the fact
occurred, and whether the tribunal is satisfied will depend on the totality of the circumstances including
the nature and consequences of the fact or facts to be proved, the seriousness of an allegation made, and
the gravity of the consequences that will flow from a particular finding.
This arbitration proceeded at great length over 15 hearing days in which 15 witnesses,
including patient “A”, testified for the employer. Three witnesses, including the grievor,
testified on behalf of the union. To consider in detail every point that was raised would
carry this decision beyond reasonable bounds. In reaching findings of fact, I have carefully
considered all of the evidence adduced. I make no attempt, however, to review all of the
evidence except in certain salient respects.
I turn now to a brief factual review of the allegations of patient abuse. On
September 20, 1994, patient “A” was 40 years of age 6 feet 2 inches and 210 pounds. The
grievor was then 56 years old 5 feet 8 inches and 175 pounds. Patient “A” testified that on
the day in question he was frustrated and agitated at being told that his status had been
6
changed from voluntary to involuntary. According to his evidence, he was in the process
of walking to the front corridor door when the grievor told him to put his shoes on. Patient
“A” testified that he said “fuck you” and kept on walking and that when he was four or five
steps from the main corridor door the grievor jumped him from behind, placed him in a
headlock and proceeded to “bang” him several times against the railing. The patient
maintained that he had no intention of leaving the hospital. At the hearing, patient “A” said
that he didn’t remember much about the incident. In his words, “I was pretty sick at the
time.” In cross-examination, he denied attacking the grievor first but did testify that during
the struggle he hit the grievor twice in the back of the neck. Patient “A” went on to say that
he respected the grievor who was “one hell of a nice guy.” When asked by Ms. Nikolich
whether he (the patient) sustained any injuries as a result of the incident he recalled slight
stiffness of the neck but denied that there was any bleeding or cuts, or other injuries. In
his statement to hospital investigator Pam Murray (Exhibit 27) he complained of a bruise
on his right arm between the shoulder and the elbow, a reinjury of a dislocated shoulder,
a stiff neck and soreness to the lower part of his spine.
The grievor gave a very different recollection of events. He maintained that, in his
capacity as the patient’s primary nurse in the booking of appointments and social activities,
he had a good working relationship with patient “A”. The grievor’s testimony was to this
effect: earlier that afternoon patient “A”, who was dressed in his pyjamas and without shoes
and socks, told the grievor to ‘Tuck off’ and that he was not going to put his shoes on; he
(the grievor) was aware that the patient had been medically certified earlier that afternoon
7
and might try to escape; Registered Nurse Chris Hamza had spoken to him about the
advisability of locking the main corridor door; the grievor assured Mrs. Hamza that he
would guard the door without the need for locking it; he did lock the door for a few
moments when he went to the bathroom and then unlocked it upon his return at which time
he positioned himself close to the door; shortly before 4:00 p.m. he observed patient “A” in
an agitated state dressed in street clothing walking rapidly towards the corridor door; the
grievor reached the door first and locked it and told the patient that he was not allowed to
leave the ward because he was certified; the patient, while shouting obscenities and
demanding to be released, kicked and attacked the grievor by pinning him against the door
while grabbing for his keys; the grievor attempted to restrain the patient by holding him
down in a 90 degree angle and then placing him in a headlock; both he and the patient were
moving back and forth during the attempted restraint; he was kicked and punched by the
patient during the restraint; no staff member came to his defence in a timely fashion to
assist in restraining the patient; and he was forced to release his grip by the patient’s
strength and in the process hung onto “somebody’s shoulders”.
The grievor testified that approximately 20 or 30 minutes after the incident, while
charting in the charting room, he had a conversation with Head Nurse Joy Ross in which
she accused him of deliberately grabbing her by the shoulders and shoving her in the
direction of the patient. The grievor explained to Miss Ross, without apparent success, that
he was unaware that he had grabbed her shoulder following the patient’s release and that
he had been thrown off balance. The grievor also acknowledged that he had a brief
8
conversation with RPN Kathryn Murphy following the incident but was unable to recall
what was said except that she had not seen how the incident began. The grievor further
testified that later that evening he was suspended by Nursing Night Co-ordinator Nora
Christensen who refused to give a reason for the suspension.
Both the grievor and the union adamantly denied all allegations of patient abuse.
Of the 15 witnesses who testified for the employer, however, several were critical of the
grievor’s actions to varying degrees.
Joy Ross was the charge nurse on Ward G-2 on the day in question. At about 3:15
p.m. she was informed by patient “A” of his intention to leave the hospital. Miss Ross
telephoned the patient’s psychiatrist and shortly thereafter advised the patient that Dr. Milo
had changed his status from voluntary to involuntary and that he was not to leave the ward.
According to Miss Ross, the patient appeared upset by the doctor’s order. After a brief
conversation with Chris Hamza, Miss Ross satisfied herself that the corridor door would be
locked as a preventative measure, in her words, “to avoid any type of power struggle.” Miss
Ross testified that following the 711 alarm she attended the scene and saw the patient “bent
over like a sandwich” with the grievor on top. According to Miss Ross, she heard the
patient complain “I can’t breathe, you are hurting my neck” and on two occasions she placed
her hand on the grievor’s left shoulder and asked him “to ease off a bit.” After the arrival
of other staff the grievor released his hold, placed his arms on Miss Ross’s shoulder and
back, pushed her in the direction of the patient and said, “you do it then.”
9
The grievor’s actions greatly upset Miss Ross. In fact, she was so distraught that she
did not record her own nursing notes until the following day. After the incident and her
subsequent discussion with the grievor, she received permission to go home. As indicated
previously, Miss Ross laid a charge of assault against the grievor. In cross-examination,
Miss Ross acknowledged that she did not participate in the restraint procedure. Similarly,
in cross-examination she had difficulty describing the hold used by the grievor in restraining
patient “A” but maintained that it was not a hold that was taught at the hospital.
Theresa Abdey was the staff nurse in charge of medications on Ward G-2 on the
afternoon shift of September 20, 1994. Briefly stated, she corroborated Miss Ross’s account
of events. Despite the fact that she was a union steward, Mrs. Abdey testified that, in her
opinion, the grievor had used excessive force in dealing with the patient. In cross-
examination, Mrs. Abdey testified that it was improper to use a headlock as a restraint and
that she heard the patient say, in a muffled voice, “I can’t breathe let go you are choking
me.” She testified that after the grievor released his hold the patient’s face was blue, that
he had blood under his right eye and that his nose was bleeding.
Registered Practical Nurse Kathryn Murphy was the first to arrive at the scene of the
altercation following the 711 alarm. She testified that the patient’s left arm was bent behind
his back and that when she attempted to grab the patient’s left arm she was told by the
grievor to leave them alone. Following the patient’s release, she recalls him (the patient)
saying words to the effect that he did not do anything wrong and did not deserve this type
10
of treatment. She recalls the patient being very verbal and that he had to be further
restrained while in seclusion on Ward H-2. In cross-examination, Miss Murphy
acknowledged that she had no training in crisis intervention procedures and in her words,
“since I didn’t see how the incident started, I can’t say he (the grievor) was using excessive
force.” Also in cross-examination, she agreed that at the London Psychiatric Hospital most
patient restraints were performed by male staff. She testified that after the incident she told
the grievor that she had seen him force a co-worker into an aggressive patient, a statement
which the grievor denied and told her that if she said that he could lose his job.
Other staff members who arrived after Kathryn Murphy, Joy Ross and Theresa
Abdey testified as to what each of them saw and heard. Suffice it to say that there were
numerous conflicting descriptions of events.
The London Psychiatric Hospital has a policy of Patient Abuse by Staff (last revision
February 1993) which is well-known to staff and which forms part of the hospital’s standard
operating procedures. Relevant parts of the policy read as follows:
ABUSE is: The unwarranted and/or inappropriate use of physical force, psychological stress or sexual
involvement; or any unwarranted, inappropriate act or omission, by service providers interacting with
patients.
PURPOSE:
To ensure the rights of patients to receive protection from any form of abuse.
To provide guidelines for reporting and investigating of alleged/suspected abuse.
To inform staff of their rights during an investigation of alleged/suspected patient abuse.
POLICY:
11
1.
2.
3.
4.
5.
6.
7.
8.
In any case of abuse or suspected abuse, the staff to whom a patient reports abuse or anyone
witnessing or having knowledge of an incident shall report the incident immediately to the head
nurse or delegate, the nursing setvice coordinator and the Manager of Nursing Services.
All incidents of abuse and/or alleged abuse must be investigated immediately by the nurse in
charge and the nursing service coordinator.
Staff who witness or have knowledge of the incident shall write a detailed statement
(independently f o each other) before going off duty. These statements are to be given to the
coordinator, who in turn gives same to manager.
The nursing service coordinator or delegate shall conduct an inquiry and complete a detailed
written report.
Where there is suspected physical abuse, the nursing service coordinator/delegate shall request
a medical assessment. Photographs may be obtained as deemed necessary by the physician.
The patient shall be interviewed and the findings incorporated into the written report.
NOTE- The patient has the right to contact the police at anytime concerning an allegation of -*
abuse.
The individual conducting the inquiry shall inform the staff member(s) concerned that an
allegation has been made against him/her.
Where it becomes necessary to remove staff member(s) from duty assignment, the staff is entitled
to representation.
FORMS OF ABUSE:
. . .
PHYSICAL - striking, kicking, choking, unnecessary roughness, pushing, shoving, grabbing and shaking.
. . .
Another standard operating procedure (Exhibit 19) dated October 90 and revised
November 1993, provides as follows:
THE MANAGEMENT OF AGGRESSIVE BEHAVIOUR: TRAINING
1.0 PURPOSE:
1.1 To provide for the safety of staff and patients through the prevention/management of
aggressive behavior.
12
2.0 POLICY STATEMENT:
2.1 All medical, nursing and clinical staff shall be provided with on-going training in current
strategies of calming, diffusing and non-verbal interventions in the
prevention/management of aggressive behavior;
2.2 All other staff shall be given the opportunity to receive appropriate training on a
voluntary basis;
2.3 Refresher training shall be provided annually.
3.0 DEFINITION OF TERMS:
Nil
4.0 CROSS REFERENCE:
Nil
Varouj Eskedjian, then assistant administrator of the London Psychiatric Hospital
conducted a pre-disciplinary hearing on October 3, 1994 and subsequently made the decision
to dismiss the grievor. In making that decision, Mr. Eskedjian testified that he relied upon
the summary report of investigator Pam Murray, the statements that she had taken from
staff who had witnessed any part of the incident, the hospital’s revised policy on patient
abuse and the injuries sustained by patient “A”. Mr. Eskedjian concluded that the patient
had not been aggressive, that the grievor made no attempt to dissuade the patient in his
(the patient’s) disturbed state, and that the force used against the patient was “unwarranted
and inappropriate”. In Mr. Eskedjian’s words, the grievor “should have considered alternate
ways of dealing with the situation.” In cross-examination, the assistant administrator
candidly acknowledged that he was uncertain whether a headlock was an appropriate
restraint mechanism and that he was not familiar with all aspects of the management of
aggressive behaviour.
13
The parties’ arguments can be briefly summarized. The employer maintains that the
grievor was dismissed for just cause, namely patient abuse by the use of excessive force, the
improper use of a headlock as a method of restraining a patient, the extended use of the
restraint and the fact that significant injuries were sustained by the patient. Ms. Nikolich,
counsel for the employer, acknowledged that the grievor’s subsequent actions in allegedly
shoving Charge Nurse Joy Ross played no part in the disciplinary response and therefore
should not be considered at arbitration. The employer argues that patient “A’s” account of
events was the credible version and that the grievor did not have to go “one on one” with
a patient but he chose to do so. Ms. Nikolich acknowledged that the grievor was “an
excellent employee in terms of nursing work” but lacked the ability to control his temper.
Counsel further contended that there were no compelling mitigating factors to justify any
form of substituted penalty. In support of its position, the employer referred to the
following authorities: Re Ontario Cancer InstituteJPrincess Mar.aret Hospital and Ontario
Nurses’ Association (Priestlevi (1993), 35 L.A.C. (4th) 129 (Barrett); Re Baptist Housing
Society (Grandview Towers) an.d Hospital Employees’ Union, Local 180, supra, (Greyell); &
Simon Fraser Lodge Inc. (B.C. Pricare) and Hospital Employees’ Union (1992) 27 L.A.C.
(4th) 300 (McPhillips); Re Kennedy Lodge Nursing Home and Service Employees International
Union, Local 204 (1991) I8 L.A.C. (4th) 38 (Davis); Re Government of Province of Alberta
and Alberta Union of Provincial Emplovees (1992) 29 L.A.C. (4th) 353 (McFetridge); Rx
Normandy Hospital Ltd. and Hospital Employees’ Union, Local 180 (1987) 32 L.A.C. (3rd)
397 (Greyell); Re Vancouver General Hospital (Health Labour Relations Association) and
British Columbia Nurses’ Union (1992), 32 L.A.C. (4th) 231 (Bird); Re Greater Vancouver
14
Mental Health Service Society and Professional Employees ’ Association ( 199 1)) 2 1 L. A. C . (4th)
390 (McPhillips); Erhard W. Koch and Hamilton Psychiatric Hospital, GSB 2175 (Beatty);
Samuel Johnston and Ministrv of Communitv and Social Services, GSB 7178 (Adams); Phyllis
J. Nixon and Ministrv of Community and Social Services, GSB 254179 (E. B. Jolliffe); and
Gaspar Abe&la and Ministrv of Health, GSB 298180 (Pritchard).
The union contends that, had the incident been properly investigated and a finding
made that the grievor was acting in self-defence, no discipline would have been imposed.
The thrust of the union’s case was that no form of patient abuse took place. The union
maintained that the headlock is a proper hold for use in restraining a patient. Mr. Bevan
maintained that patient “A” was not a credible witness. He also contended that staff
training at the London Psychiatric Hospital was totally inadequate and that staff should not
be held to a standard for which the hospital was unwilling or unable to provide training.
Mr. Bevan contended that the grievor’s injuries were not serious and any written account
of these injuries were taken by investigator Murray from the patient’s complaints, in the
absence of medical verification. He also contended that some of the injuries may have
occurred in seclusion. The union relied upon the following arbitral decisions: OPSEU
f0hr-t) and Ministry of Health, GSB #0250/88 (Dissanayake); Communitv Living Oakville and
Ontario Public Service Employees Union (Grievance of Schott) (unreported, March 1, 1994
(Samuels)); and OPSEU (Inkumsah) and Ministry of Correctional Senices, GSB #968/91
(Stewart).
15
As indicated previously, the first question is whether in these particular circumstances
any employment offence occurred. The allegations of patient abuse against the grievor are
indeed serious. The fact remains that no one witnessed how the altercation began. If I
were to accept patient “A’s” version of events, I must conclude that patient abuse was
established and that reinstatement would not be appropriate, at least to any position with
direct patient contact. The employer contends that patient abuse occurred when the grievor
placed the patient in a headlock and applied excessive force for an extended period of time.
In fairness, the employer readily acknowledges that the further incident involving the alleged
shoving of Charge Nurse Joy Ross played no part in the its decision to terminate the
grievor’s employment.
In this matter, a key factor is the assessment of credibility of the two main
protagonists. On the difficult issue of credibility assessment, I would adopt the oft-quoted
rationale of Mr. Justice O’Halloran of the British Columbia Court of Appeal in Far-ma v.
Chomv [1952] 2 D.L.R. 354 where he states at pp. 356-8:
If a trial Judge’s finding of credibility is to depend solely on which person he thinks made the better
appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would
then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the
appearance of telling the truth is but one of the elements that enter into the credibility of the evidence
of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to
describe clearly what he has seen and heard, as well as other factors, combine to produce what is called
credibility, and cf Raymond v. Bosanquef (1919), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17
O.W.N. 295. A witness by his manner may create a very unfavourable impression of his truthfulness upon
the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion
that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a
witness is caught in a clumsy lie.
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely
by the test of whether the personal demeanour of the particular witness carried conviction of the truth.
The test must reasonably subject his story to an examination of its consistency with the probabilities that
16
surround the currently existing conditions. In short, the real test of the truth of the story of a witness in
such a case must be its harmony with the preponderance of the probabilities which a practical and
informed person would readily recognize as reasonable in that place and in those conditions. Only thus
can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses,
and of those shrewd persons adept in the half-lie and of long and successful experience in combining
skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely
believes to be true, but he may be quite honestly mistaken. For a trial Judge to say “I believe him because
I judge him to be telling the truth”, is to come to a conclusion on consideration of only half the problem.
In truth it may easily be self-direction of a dangerous kind.
The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with
the preponderance of probabilities in the case and, if his view is to command confidence, also state his
reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts
and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge’s finding of
credibility is based not on one element only to the exclusion of others, but is based on all the elements
by which it can be tested in the particular case.
In assessing patient “A’s” credibility against the totality of the evidence adduced, I
do not find him to be a credible witness. At the hearing, he had a very limited recollection
of events on the day in question. That is perhaps understandable given the evidence as to
his mental state at the time. Patient “A” testified that he had no intent to leave the ward.
That evidence does not coincide with the evidence of other witnesses. Further, a significant
piece of evidence was given by Rose Degraw, a registered practical nurse in her thirtieth
year of employment, who recorded in her nursing notes on September 25, 1994 statements
made to her by patient “A” regarding the incident some five days earlier. Mrs. Degraw’s
notes states, “he (the grievor) tried to stop me from leaving the ward so I grabbed him and
pinned him against the wall...” (Exhibit 31). That evidence appears to have escaped the
employer’s attention.
I find that the grievor was generally a credible witness although I do not accept all
of his evidence. The grievor’s explanation of his conduct towards Joy Ross after the release
17
of the patient does not conform with the evidence given by either Miss Ross or Theresa
Abdey and others. Similarly, I find that the grievor does not recall much of his later
conversations with either Joy Ross or Kathryn Murphy. In my view, however, his version
of events as to how the altercation started is the more probable account. I am satisfied that
the grievor found himself in a dangerous emergency situation in which he was being
attacked by a husky male patient who was infuriated by the grievor’s attempt to prevent him
from leaving the hospital. In these circumstances, there was no time for the grievor to
attempt to defuse the situation by taking any form of alternate action. I am satisfied that
at the relevant time the grievor was attacked by the patient who had the advantage of
height, weight, youth and possibly strength.
Much was made of the conflicting evidence as to whether or not the grievor locked
the corridor door before he attempted to restrain patient “A”. On this point the evidence
is unclear. I accept the grievor’s testimony that he attempted to lock the corridor door and
thought that he had done so after he observed patient “A’! dressed in street clothes walking
rapidly toward the door. Shortly before, RN Chris Hamza and the grievor had a
conversation about securing the corridor door, although Mrs. Hamza testified that she did
not order the grievor to do so. In retrospect, it may have been an error in judgment that
the corridor door was not locked at the time Joy Ross made that suggestion to Chris
Hamza.
Having carefully considered all of the evidence adduced, I conclude that the
employer has failed to meet the onus of proof on clear and cogent evidence. The employer
I8
strongly contended that the headlock was an improper form of restraint. The evidence
before me falls far short of establishing that fact. We do know that the headlock is not
taught as a restraint mechanism at the London Psychiatric Hospital. It is, however, a
recognized form of restraint at Penetanguishene Health Centre, a psychiatric facility
operated by the same Ministry. Further, it is not without significance that both London
Psychiatric Hospital Staff Development Co-ordinator Kathleen White and Assistant
Superintendent Varouj Eskedjian were uncertain as to whether a headlock was a proper
form of restraint in a hospital setting. In my view, the grievor’s use of a headlock does not
establish the allegation of excessive force.
I am satisfied that the grievor attempted to restrain patient “A” for a period of time,
in all probability between one and two minutes. The manner of restraining patient “A” was
primarily by use of a headlock during which time the patient was still struggling while bent
over with the grievor on top. I accept the grievor’s evidence that he maintained that hold
until he was no longer able to do so. Registered Nurse Theresa Abdey was satisfied that
the grievor had used excessive force and testified that the grievor’s words were muffled
during the struggle and that the grievor said that he was choking. Charge Nurse Joy Ross
also heard the grievor say that he was choking. Against that evidence, however, most other
witnesses described patient “A” as loud and very vocal throughout the restraint, which is
impossible to reconcile with evidence of choking. Theresa Abdey described the patient’s
facial colour as blue following the release of the restraint mechanism. In my view, that is
not surprising given that the patient was in a bent over position, was struggling, and was
19
shouting loudly for some one to two minutes.
Further, the employer criticized the grievor for holding onto the patient for too long
when Joy Ross and Theresa Abdey were both telling him to ease up or let go. On the other
hand, there is the evidence of ward clerk Bill Hill, an experienced RPN who testified that
it would have been a mistake to let go in an emergency situation with a patient possibly
stronger than the grievor. RPN Royston Clark testified that the patient was still struggling
when he arrived but that he (Clark) had a hold of the patient when the grievor let go.
According to Mr. Clark, he saw no patient abuse and did not fault the grievor for holding
onto a patient who was not totally under control.
The evidence established that staff on Ward G-2 were reluctant to come to the
assistance of the grievor in the actual physical restraint of patient “A”. The exception
appears to be RPN Kathryn Murphy who attempted to take hold of the patient’s left arm.
If the patient was in a headlock, as I find he was, it may have been more useful had she
attempted to hold one or both of the patient’s legs. In my view, Theresa Abdey and Joy
Ross may be properly criticized for failure to offer the grievor any meaningful assistance.
The purpose of responding to a 711 alarm is to assist in the restraint of a patient - a duty
which is expected of male and female staff alike.
On the evidence, I am satisfied that crisis intervention instruction at this hospital
leaves much to be desired. The stated objective of annual refresher training (Exhibit 19)
20
simply does not take place. The training appears to be sporadic at best. According to the
evidence, the grievor last received training in the management of aggressive behaviour some
three and a half years prior to this incident. I accept the grievor’s evidence that he was not
told that a headlock was an improper restraint, despite the fact that he had used headlocks
in the past to restrain patients. The evidence of most hospital staff who testified, was to the
effect that the mandatory refresher training in the management of aggressive behaviour was
more honoured in the breach than the observance.
True, the patient did sustain injuries in this altercation. On the evidence before me,
patient “A’s” injuries may be properly characterized as superficial. In fact, the injuries were
so inconsequential that Dr. Hamilton, the attending resident physician on the night of
September 20, 1994, was apparently unable to recall the injuries and did not testify.
Nevertheless, the evidence did establish that the patient sustained a minor nose bleed and
several witnesses identified a small amount of blood under the patient’s left eye. I find that
these injuries were sustained in the general scuffle during the first restraint. It is less clear,
however, whether he bruised his right arm and injured his right shoulder in the original
restraint or during the three subsequent restraints. In any event, I am satisfied that the
grievor had no intent to harm patient “A”. In my view, unintended minor injuries sustained
in these particular circumstances do not constitute patient abuse. In summary, I find that
the grievor did not use excessive force in the restraint of patient “A” and accordingly there
was no just cause for the imposition of any form of discipline.
21
A few observations may be useful to address a number of procedural concerns.
Night Nursing Co-ordinator Nora Christensen suspended the grievor on the evening of
September 20, 1994. When asked by the grievor why he was being suspended, Mrs,
Christensen refused to give a reason, saying words to the effect that she could not divulge
that information. In my view, the grievor was entitled to some form of explanation at the
time of his suspension. Equally surprising was Mrs. Christensen’s decision to have Theresa
Abdey present as a union representative for the grievor at the time of the suspension. For
her part, Mrs. Abdey should have known that she was in no position to provide union
representation due to her personal involvement. Further, Mrs. Abdey was not asked by the
grievor to be his representative.
The hospital’s investigation of the incident is also a matter of concern. Pam Murray,
acting director of rehabilitation services at London Psychiatric Hospital, conducted an
investigation at the request of Hospital Administrator Mercer for the purpose of making a
recommendation as to whether or not a disciplinary hearing should be held. Unfortunately,
Ms. Murray had no formal training in investigation procedures. Astoundingly, she did not
interview the grievor to obtain his side of the story prior to making a recommendation to
the hospital. She appears to have recorded in writing only those portions of the various
witness accounts in which there was a consensus. In particular, she made no determination
as to how the incident started or what form of restraint was used. In my view, it should
have been obvious to Assistant Superintendent Eskedjian that the investigation was so
superficial as to be suspect and of limited assistance. At the request of local union
22
president Kathleen Bodine, the grievor was allowed to submit a written statement following
the pre-disciplinary hearing. The fact remains, however, that the grievor’s statement was
not obtained in a timely fashion. In the decision to dismiss the grievor, Mr. Eskedjian
appears to have relied in large measure upon the results of the Murray investigation.
What is the appropriate remedy ? There is no evidence before me that the grievor
would not have been reappointed to the public service had he not been disciplined. On the
basis of the final award in Miller and MacPhaiZ this is the appropriate case to reinstate the
grievor for the remainder of his last term contract and to award compensation for the
period from the dismissal to the effective date of his reinstatement, together with interest
based on the usual formula set out in Re Hollowell House, (1980) O.L.R.B. Rep. Jan. 25.
I retain jurisdiction in the event of any difficulty encountered in the implementation of this
decision.
DATED at Brantford, Ontario, this 30th day of September, 1996.
I
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R. L. VERITY, Q.C. - VICE-CHAIRPERSON