HomeMy WebLinkAbout1993-0757.Meagher.95-04-27
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ONTARIO EMPLOYtS DE LA C6URONNE
CROWN EMPLOYEES DE L'ONTARIO
1') 1111 GRIEVANCE COMMISSION DE
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SETTLEMENT REGLEMENT
BOARD DES GRIEFS vi ~
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180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G 1Z8 FACS/MILEITELECOPIE (416) 326-1396
GSB# 757/93
OPSEU# 93E057
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Meagher)
Grievor
- and' -
The Crown in Right of Ontario
(Ministry of Health)
Emp10yer
BEFORE: S. stewart Vice-Chairperson .
M. Lyons Member
D. Clark Member
FOR THE D. Wright
GRIEVOR Counsel
Ryd~r, Whitaker, Wright
Barristers & Solicitors
FOR THE J. Crawford
EMPLOYER Deputy Director
Legal Services Branch
Ministry of Health
HEARING December 8, 1993
January 6, 1994
April 12, 13, 1994
May 19, 1994
June 3, 1994
July 4, 14, 29, 1994
September 27, 1994
October 11, 18, 1994
January 5, 6, 1995
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DECISION
In a grievance dated April 31, 1993, Mr. L. Meagher claims
that he was dismissed without just cause. At the time of his
dismissal, Mr. Meagher was employed as a social worker at Whitby .1
psychiatric Hospital. He had been employed in that position I
since 1989. Mr. Meagher obtained an MSW from Carleton University I
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in 1968 and he has worked in a number of positions as social I
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worker since that time. His resume indicates that his position I
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with the Whitby psychiatric Hospital was his first employment in I
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a hospital setting outside of field placements when he was a
student. I
Mr. Meagher was discharged~by letter dated April 30, 1993
signed by Mr. R. Ballantyne, administrator. The relevant portion
of the letter of discharge states as follows:
I am writing to report on my conclusions
resulting from the allegations made that you
engaged in physical contact with one patient - -
and made improper advance [sic] toward another.
Based on the evidence brought forward I conclude
the following: -
1. that you violated the trust expected of a
professional in your role with two patients
of the facility. .l
2. that you initiated inappropriate physical
contact with one patient of the facility
on three occasions and made inappropriate
advance [sic] toward another patient on one
occasion.
3. that you used sexually explicit slang
language with two patients.
4 that your conduct was unprofessional by
engagiqg in practices which were uncon-
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venti9nal and unacceptable (e.g , touching,
-use of slang, lack of record~ng, meeting
with patient alone in your car in a park).
I further conclude that, given the above, your
professional performance fell below acceptab!e
standards of practice. As a result, you are now
terminated as an employee of Whitby psychiatric
Hospital effective today.
The allegations against Mr. Meagher arose in March, 1993, .r ~
based on information 'from two patients relating to events in
the winter of 1992 in the case of one patient and in the summer
of 1991 in the case of another patient. At the outset, it was
the Employer's view that Mr. Meagher had made sexual advances to
the two patients. In a letter dated March 19, 1993 Mr. Meagher
was advised that he was suspended and that a meeting would be
held to deal with allegations that he "... engaged in sexual
contact with one patient and made sexual advances towards
another". However, and notwithstanding the reference to
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"advance" in the letter of discharge, Mr. Ballantyne testified
that at the point of discharge it was accepted by the Employer
that by virtue of the fact that the evidenc~ did not establish
that Mr. Meagher had ihitiated or attempted to initiate touching
sexual organs, the Employer did not consider Mr. Meagher as
having engaged in sexual. advances. However, Mr. Ballantyne
indicated that he considered Mr. Meagher to have engaged in
inappropriate physical contact.
Mr. Meagher was initially advised only of the allegations
relating to the patient who claimed physical contact. Mr.
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Meagher immediately acknowledged that he had engaged in physical
contact with a patient. He explained that his, actions were
intended to be therapeutic While there was ,some ,dispute about
the precise time that he named the therapy, it was common ground
that Mr. Meagher identified the therapy he was practising as
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bioenergetic therapy 'The position of the Employ.er was that Mr.
Meagher acted inappropriately in employing what_was identified as ~
bioenergetic therapy in that he employed it without sufficient
training, without regard to its inappropriateness ,f~rpatients
who were victims of sexual abuse, without documenting his actions
and without authorization from his supervisors. Indeed, it is
the Employer's position that Mr. Meagher was aware from a
discussion with Ms. V. Sadana, the director of' social work ~t the
hospital, that the Employer did not authorize this; kind of
therapy. It was 'the Employer's further position that Mr. Meagher
had chosen inappropriate settings to engage in such therapy. As .
well, it was the'Employer's position that Mr. Meagher had
inappropriately engaged in the use of sexually explicit language.
Mr. Meagher testified that he was introduced to bioenergetic
therapy between 1985 and 1989, through lectures bya child abuse
consultant employed by Durham Region, Mr.G. Fair. Mr. Meagher
attended two lectures given by Mr Fair, each approximately one
hour in length. Mr. Meagher testified that he spoke with Mr.
Fair after the lectures and he obtained articles and books about
bioenergetic therapy Mr. Meagher testified that he attended a
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two hour seminar given by Mr. R Pepler, a fellow social worker,
at whitby psychiatric Hospital dealing with bio~nergetics and
what was described as "body work". Mr. Meagher testified that he
read the seminal wor~ on the topic, Bioenergetics by Dr.
Al~xander Lowen, a psychiatrist. In his evidence, Mr. Meagher
identified a number of other texts that he had read relating to
bioenergetics. Excerpts from the introduction and the table of ~
contents of one of the books that he referred to, The way.u to
vibrant Health - A,Manual of Bioenergetic Exercises, by Dr A.
Lowen and Ii>. Lowen, were filed with the Board. The introduction
to this book defines bioenergetics in a manner consistent with
the description provided by a number of the witnesses who had
some experience with the teaching and practice of b~oe~ergetics.
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Essentially, bioenerget~cs is a form of therapy that has as its
premise the concept that there is a fundamental relationship
between what takes place in the ~ind and what takes place in the . -
body, wit~ that which takes place in the mind being reflected in
the body and what takes place in the body being reflected in the
mind. The introduction of the Lowen and Lowen text, supra,
refers to manipulative procedures and special exercises as part
of the "body work" of bioenergetics. The text states that:
The exercises a~e des~gned to ,help a p~rson get tn
touch with his tensions and release them through
appropriate move~ent. The manipulative procedures
consist of massage, controlled pressure, and gentle ~~ ~
touching to relax contracted muscles. It is important
to know that every contracted muscle is blocking some
movement.
The Lowen text, Bioenerqetics, supra, also refers to I
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massage as part of bioenergetic therapy The Lowen and Lowen
text refers to massage of variousJparts of the body. However, we
were not directed to a specific reference to stomach massage
Mr. Meagher testified that following Mr. Pepler'S seminar he
and Mr. Pepler had ongoing discussions regarding bioenergetic
therapy and techniques. Mr. Meagher testified t~~t Mr Pepler ~
demonstrated a number of techniques to him, inclUding massage of
the stomach area. He testified that he began to practice
bioenergetics in his part-time position with the Catholic
Community Services. He testified that he practised bioenergetic
techniques on 8 or 9 clients, which involved touch, including
massage of the stomach.
Mr. Meagher test if ied,. that his practice of bioenerge.tic
therapy, which he also described as therapeutic touch, was
governed by the same considerations as other forms of therapy.
He would consider whether it would be appropriate. therapy in the
case of any particular patient, it was necessary to obtain
consent from the patient and assess the effectiveness of the
therapy as it progressed He testified that the sexual organs
and pUbic area would never be touched in the course of this
therapy. Mr. Meagher testified that he did not initially
practice bioenergetic therapy with any of his patients at, Whitby
psychiatric Hospital as most of them had major psychiatric
disorders and he felt that bioenergetic therapy would not be of
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assistance to them
Mr. Meagher was charged with sexual assault as a result of
engaging in stomach massage of a client of the Catholic Community
Services. He was acquitted of those charges. Mr. Meagher'S
supervisors became, aware of the charges as a result of Mr.
Meagher' telling them about the charges. In the spring or summer
of 1'992, Mr. Meagher and his supervisor, Mr. E. 'Smith, 'came to
see Ms. Sadana, who, as previously noted, is the director of
social work at the 'institution. Ms. Sadana testified that she
was advised that criminal charges had been laid against 'Mr.
Meagher in connection with therapy that he provided for a client
of the Catholic Children's Aid Society. She further testified
that Mr. Meagher told her that the therapy that he had engaged in
that gave rise to the charges was rUbbing the client's stomach.
,Ms. Sadana also testified that there was some discussion about -
the importance of judgment in selecting a particular form of
therapy for clients and the importance of obtaining consent. Ms.
Sadana testified that at that point in the discussion she "said
something to the effect that because of this we don't practice
this type of therapy at the hospital". Ms. Sadana testified that
she saw Mr. Meagher on a second occasion about the matter, which
she characterized as: "basically to see what he was experiencing
and offering support". Ms. Sadana testified that she advised Mr.
Ballantyne about the charges
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In his ,evidence!, Mr Meagher took issue, with some aspects of
Ms Sadana's testimony as to what transpired in their discussions
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relating to his disclosure of the criminal charges Most
significantly, Mr. Meagher denied that Ms'. Sadana 'made a
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statement to him indicating that the kind of treatment that he
had referred to did not take place in the hospital.
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It is apparent from Mr Meagher'S evaluations that prior to
the Employer's knowledge of the events giving rise to his
discharge, Mr. Meagher was a valued employee. His evaluations
are very positive, with the one criticism of his perfo~mance
being in relation to his difficulties keeping up with his paper
work. The following excerpt fro~ Mr. Keagher's september 4, 1990
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evaluation is ~ypical of other evaluations fileg with the Board:
During his employment on the S.T.A.T. unit, ~r.
Meagher has demonstrated excellent social work
skills. His work shows- a genuineness and respect .
for patients. He is skillful in short term crisis
and in preparing patients for transfer to a
specific treatment unit or discharge. Hi~ approach
to patients is very supportive as he, helps to
reinstitute the development process. Whenever
possible, he includes the family in treatment ~s
well as networking on their behalf. He perceives
his role to be an active participant in th~
patient's life in order to assist in the healing
process and improving t.l'),~ir "quality of life".
Mr. Meagher is a very co-operative and conscient~ous
worker which is a definite asset to the mUltidisciplinary
team His own self-confidence, skills and respect for
others has helped gain the confidence, support and
respect of other team members He works well within
the team in order to enhance the patients' well-being.
During his time on the S TAT unit, Mr. Meagher has
taken responsibility for his professional development
by reading and attending education workshops and seminars
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This has given him a greater knowledge of mental illness,
which he has integrated into his practice. He has also
become more familiar with community resources and how
to access them.
Mr. Meagher meets regularly for supervision. He has a
positive working relationship with his supervi90r and
finds the time stimulating and challenging. He feels
free to consult when necessary and is very open in
discussing his cases.
As Mr. Meagher is becoming more accustomed to the fast ~
pace of the unit, he finds the work easier. since he
has set aside a specific time (Wednesday afternoons)
to complete paperwork, he has shown iroprovement in
completing the psychosocial assessments and discharge
summaries within the time frame.
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A subsequent evaluation carried out by the .same supervisor, --_.- -
Mr. E. Smith, dated January 29, 1993 states in part:
GENERAL SOCIALWORK,SKILLS
Lionel has demonstrated excellent social work skills.
He is caring and supportive, as he helps his patients
deal with their difficulties and builds on their
strengths. He treats his patients with respect and -
they, in turn, feel comfortable with th~s approach and -
trust him.
Although Lionel finds his split assignment somewhat
frustrating at times, in that h~ needs to be in both
places at the same time, he, has nevertQeless adapted
well to this and sees it as a new challenge. Lionel
values the treatment team and has also made a valuable
contribution to it.
SPECIFIC SOCIAL WORK SKILLS
Lionel has e~cellent social work skills. He completes
a very thorough psychosocial assessment, giving careful
attention to all areas of the assessment. He has, a
good knowledge base and uses different modalities of
treatment in different situations. He is skilled in
marital, family and individual therapy and uses a
cognitive approach as well as brief therapy methods
and psychodynamic approaches Lionel is very supportive
to his patients and works diligently with them. He
has a good, knowledge of community resources and uses
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them very appropriately.
SPECIFIC SOCIAL WORK SKILLS
He is thorough in his discharge plann)..ng, making sure
that all referrals have been made to provide follow-up
when this is necessary Since working part-time in t~~
Approved Homes Program, Lionel is using his group
skills, as he operates a group once a week in the home.
ADMINISTRATIVE/ATTITUDINAL SUMMARY
Lionel is a very conscientious and co-operative social
worker. He is flexible and adapts read~ly to new
situations, as evidenced by his change to a split
assignment during the past year. He has a good
understanding of the needs of tpe hospital and the
services provided and works within these parameters.
Lionel has a good understanding of the Mental Health
Act and hospital policy and procedures. Dq.ring the past
year, he has worked hard at meeting social work
standards. Although he has made improvements in
meeting recording standards, this is an area that he
needs to continue to work at.
The assessment goes on to note that Mr. Meagher "takes
responsibility for his own professiopal development and that he
"continues to read new information to keep himself updated, as .
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well as attending grand rounds and pee~ consultations". The
evaluation also states that: "Lionel attends supervision on a
regular basis. He values this ,time and uses it in a constructive
way. ..
When he commenced his employment with Whitby psychiatric
Hospital, Mr Meagher was assigned to the short-term assessment
and treatment unit (STAT). Mr. Meagher'S supervisor was Mr E
Smith. Commencing in May,. 1992, Mr. Meagher was given a split
assignment, to inpatients in the acute intermediate treatment
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unit (AITU) as well as to patients in approved homes Mr
Meagher's supervisor for the AITU portion of his assignment
continued to be Mr. 'E Smith. He was assigned a new supervisor
for the approved home portion of h~s assignment, Mr. R. Kuchmuch.
, Mr. Meagher testified that he felt responsible for "most of
the treatment" .of his patients in the approved ho~e ~
He would
meet with each patient alone once or twice a w.eek. A community
psychiatrist saw 't::he patients once a month. He testified that,
unlike the hospital environment where there were a number of
health professionals available, he was the main contact with the
patient when the patient was in the approved ho~e. He testified
that his understanding was that his role was to provide
supportive therapy to patients. He was to provide a written
report on each patient on a monthly basis. Mr. Meagher testified
that there was to be meetings with Mr. Kuchmuch and other social .
workers assigned to the two approved homes. However, these
meetings were not always held. He testified that when the
meetings were held, the focus of the discussion was the program
rather than individual patients.
Mr. ~uchmuch identified a number of dates on which meetings
were scheduled with Mr. Meagher, however he was unable to be
certain as to which meetings actually took place. However, he
testified that he was in touch with Mr. Me~gher regarding the
approved home patients. Mr. Kuchmuch tes't::ified that there was no
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discussion about the use of bioenergetic therapy in the case of a
particular patient, hereinafter identified as "Mr X" and that he
would "most assuredly" expect to be advised 'about suCh a ,matter
Mr. Kuchmuch noted that he had received a call from Mr Meagher
about Mr. X's condition at the time of Mr X's re-a~mission to
the Hospital Mr. Meagher also made a note about that matter on
Mr. X's chart, however there was no reference to .bioenergetic ~"
therapy in that note.
As previously noted, certain information about Mr. Meagher's
actions came to the attention of the Employer in March; 19Q3.
Mr. X approached Ms. M. Brennan. Ms. Brennan is acting director
in the psychotherapy' unit and also carries out social work
functions. Ms. Brennan testified that Mr. X told her aQout
events that had taken place in November and Decemb~r, 1~92 when
he was a resident of a group home. She testified that Mr. X told .
her that Mr. Meagher had rubbed his stomach and that one of these
incidents took place away from the group home, while Mr. X was
parked with Mr."Meagher in his car. Mr. X advised Ms. Brennan
that he was now beginning to realize that this was not therapy
and was inappropriate. Mr. X also advised Ms. Brennan tpat Mr
Meagher had asked him to use "slang" words- such as "cock" instead
of penis in describing his sexual abuse and had asked him, to
describe his sexual abuse in detail Mr X also reported that it
was his understanding that there were similar incidents involving
another patient, hereinafter referred to as Mr Y.
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Mr. Y was interviewed and he referred to events i~volving
Mr. Meagher which took place in 1991- Mr. Y indicated that he
had advised Mr. Meagher that he did not like to be touched but
that there was an occasion when Mr Meagher came to his apartment
and suggested that he rub his stomach. Mr. Y also referred to
Mr. Meagher using graphic language in relation to Mr. Y's past
sexual abuse. ~
The incidents were investigated in accordance with the
hospital's policy on patient abuse by staff. As would be
expected, this policy provides that abuse of patients will not be - -
tolerated and it sets out the procedures to be followed when
there is an allegation of abuse. Mr. Kuchmuch was the person who
advised Mr. Meagher of the allegation~. At that meeting, ,Mr.
Kuchmuch advised Mr. Meagher that a patient had alleged that he
had touched his stomach. That was the extent of tide allegations .
made known to Mr. Meagher at that time. Mr.. Kuchmuch testified
that Mr. Meagher immediately acknowledged that he had touched Mr.
X on the stomach on at least three occasions. Mr. Kuchmuch also
testified that Mr Meagher indicated that he was engaged i~
therapy and that the touch on the stomach related to the
patient's pain being centred there, but the therapy was not
specifically identified as bioenergetics at this time.
To some extent, there was no dispute as to what transpired
between Mr. Meagher and the two patients. Mr. X and Mr. Meagher
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became acquainted when Mr X was a patient at the Whitby
psychiatric Hospital. Mr X's diagnosis was depression a~d
personality disorder There was some dispute in the evidence as
to precisely when they met, but it was. common:. ground that Mr
Meagher was assigned as Mr X's social worker at or qround the
time it was decided that Mr X would be transferred to a group
home. The purpose of his transfer to a group home was to qllow
Mr. X to stop using medication in order that he could r~turn to
the psychotherapy unit of the institution to obtain treatment.
Patients obtaining treatment on that unit must be off me~ication
Mr. X testffied that he met Mr. Meagher for the first time
at the hospital when Mr. Meagher took him to the gr~up home. In
cross-examination, he denied that he met with Mr. Meagher prior
to this time although when confronted with the record indicating
two prior meetings he indicated that they could have been brief .
meetings which he did not recall. Mr. X testified that at his
first meeting with Mr. Meagher he told him that he did ,not like
to be touched and that Mr. Meagher advised him he wo~ld not touch
him. He testified that this conversation took place on the unit.
Mr. 'x was ,directed to notes taken of his statement at Mr
Meagher'S internal hearing at the hospital wherein he had
indicated that he had made that statement to Mr'. Meagher in the
car. Mr. X then testified that the statement might have been in
the car, later that it might have been made twice and then that
it was probably made twice He subsequently maintained that the
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statement was not made in the car but that it was made at the
hospital.
Mr. x testified that his discussions with Mr Meagher after
his transfer centred on his recurring nigptmar~s with respect to
his past sexual abuse. He testif~ed that Mr~ Meagher asked for
details which he provided, after which he b~came very depressed
and suicidal and returned to the institution.. According to Mr.
X's testimony at his ,next meeting with Mr. Meagher he was again
asked to focus on his sexual abuse and the incidents. He
testified that Mr. Meagher asked him where he was experiencing
physical pain and that he identified his stomach and genitals.
According to Mr. X's evidence Mr. Meagher then reached out to his
stomach, placed his hand outside of his shirt and moved it in a
circular motion. Mr. X testified that at ~is ne~t meeting the
focus, was on sexual abuse and again Mr. Meagher placed his hand -
on his stomach. Mr. X testified that after this meeting he felt
depressed and suicidal. He wished to return to the hospital but
was told that there were no beds available at. the time.
Mr. X testified that at the next meeting Mr. Meagher
suggested that they talk in his car in order to avoid
interruptions in the house. Mr. X testified that Mr. Meagher
parked his car at the Scarborough Bluffs and asked him to again
relate details of his sexual abuse. Accordin9 to Mr. X's
testimony, Mr. Meagher again asked him tq use slang terms, rather
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than clinical terms, in deScribing those events. Mr. X testified
that Mr Meagher reached over and started to rub his stomach
again, placing his hand inside his shirt and unfastening the top
button of his pants. He testified that~the massage took place
over a period of about twenty minutes. Mr. X testified that
after the meeting he returned to the STAT unit because, he felt
depressed and suicidal
Mr. X testified that he perceived Mr. Meagher's touch to be
sexual in nature. However, at Mr. Meagher's pre-disciplinary
meeting Mr. X acknowledged that there was nothing about the touch
per se that was sexual, but stated that it triggered memories of
past sexual abuse. Mr. X made no complaints to anyone ,at or
around the time of the events.
Mr. X testified that he and other patients, including ,Mr. Y, .
were discussing staff members and Mr. Meagher's name was
mentioned. Mr. X tesified that Mr. Y asked him if Mr. Meagher
had ever touched him. Mr. X testified that he told Mr. Y that he
did not want to discuss the matter. However, Mr. Y testified
that Mr. X told him that Mr. Meagher had touched his stomach.
According to Mr. Y, he told Mr. X that he would not let Mr.
Meagher touch him and that Mr. Meagher was a "pervert". It was
after this conversation that Mr. X spoke with Ms. Brennan.
Ms. Brennan's record of her conversation with Mr. X
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indicates that Mr. Meagher continued to us~ "slang" words in
spite of his protests. However, at the internal he~ring on April
20, 1993, Mr. X ingicated that he did not raise any objec;:tion to
the use of this la~guage because he, felt uncomfortable ip ~aising
this objection with Mr. Meagher. Mr. X testified that Mr.
Meagher nev~r discussed the reason for ~he touching and pever
mentioned the term bioenergetics to him. He denied in crO$S- ~
examination that the slang language was used at his suggestion.
When asked in cross-examination to confirm that while he
identified his genit~ls as the place where he was experiencing
pain to Mr. Meagher, ,Mr. Meagher did not touch his geni taJ,.s, -- Mr. --
XiS response was "npt that I am aware of" and then indicated, that
he did not remembe,r whetJ'ler ,Mr. Meagher had touched hi:s gen~ tals.
He acknowledged that he had never blocked his earlier sexual
abuse 'but stated that he would "possibly" have blocked a
recollection of Mr. Meagher touchin%his genitals. -
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A statement of claim dated August 24, 1994 in the name of"
Mr. X and Mr. Y as plaintiffs, issued against Mr. Meagher and the
Employer as defendants, was filed with the Board. In the
statement of c;::laim it is alleged that Mr. Meagher engaged in
fondling and rubbing Mr. X's genitals and groin are~, rubbinqand
touching his body in a sexual manner, attempting to remQve his
clothing, undoing his pants and attempting to lower them and
making improper sexual advances. The statement of claim was
issued in August, 1994, subsequent to both Mr X and Mr. Y giving
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evidence and accordingly, there was noop~ortunity for either
witness to be questioned about the allegations it contains in the
course of their evidence in this proceeding.
Mr. Y was a patient of Whitby Psychiatric Hospital in the
STAT ward between May 24 and June 24, 1991 where he was obtaining
treatment for depression. He waS discharged against medical
advice. Mr. Meagher was Mr. 'Y' s assigned socia-l worker while he
was at the hospital. Mr. Y testified that during their meetings
at the hospital Mr. Meagher raised the issue of sexual abuse in a
way that he found inappropriate. He testified that Mr. Meagher _.
asked him in a graphic way whether a family member had ,involved
him in oral sex. Mr. Y testified that he asked Mr Meagher ,not to
use that kind of language but that he continued to do so. It was
common ground that subsequent to Mr. Y's discharge he was
experiencing ongoing depression and felt that he needed .
assistance. According to Mr. Y's evidence, he contacted Mr.
Meagher one or two times. Mr. Y denied that he specifically
asked Mr. Meagher to come to see him but .acknowldged that
arrangements were made for Mr. Meagher to meet him at his
apartment. This meeting took place about 9 00 p.m. Mr. Y
testified that he and Mr. Meagher had some discussion about Mr.
Y's condition and, according to Mr. Y's ~estimony, Mr. Meagher
"tried to get me to come over and sit down so he could rub my
stomach II . When asked if there was any discussion as to why Mr.
Meagher wanted to touch him, Mr. Y testified that Mr. Meagher
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told him that it would help him feel better. Mr. Y te13tified
that his response was "no way" and that Mr. Mepgher did not
attempt to touch him. Mr y ~estified that Mr. Meagher did not
explain that touching him was part of bioenergetics or part of
therapy'. Mr. Y testified that a friend of his came to visit and
that Mr. Meagher ,left shortly after. Mr. Y acknowledged that Mr
Meagher th~n spoke with, him for a while and ask~d him about ~
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matters such as whether he had eaten. In the statement of claim
referred to apove, Mr. Y also alleges that Mr. Meagher fondled
and rubbed hisgen~tals and groin area, rubbeq and touched his
body in a sexual ~anner, attempted to remove his clothing, undid
his pants and attempted to lower them and made improper sexual
advances.
According to Mr. Meagher's testimony, he had three me~tipgs
with Mr.. X prior ~o Mr. X leaving the hosp~tal. He testified -
that the first me~ting was with his supervisor, Mr. Smith, and
Mr. X, on November 3, 19.93 . The second meeting was on November
5, 1993, with Mr. .Kuchmuch, himself and Mr. X. 'l;'hese meetings
are confirmed by ,Mr. X's clinical record. Mr. Meagher testified
that there was a subsequent brief meeting between himself and Mr.
X, prior to Mr. X leaving the hospital.
Mr. Meagher testified that there was not a lot of detail
regarding Mr. X's circumstances conveyed to him in the meetings
at the hospital, powever, he was advised by Mr. Smith that Mr. X
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had disclosed his past sexual abuse and that Mr Smith felt that
Mr. x was re'adyto "work on" the matter. Mr. Meagher's evidence
in this regard was corroborated by Mr. Smith at Mr Meagher's
pre-disciplinary meeting. Mr Smith also indicated at that
meeting that Mr. Meagher may be more 'knowledgable than h~ is in
dealing with victims of sexual abuse. Mr. Meagher testified that
at no time during the meeting at the hospital nor at any ti~e
subsequent did Mr. X make any reference to a concern about being
touched by men.
Mr. Meagher testified that he drove Mr. X to the group home
in Scarborough and after introducing him' to the residents and
staff there was a short group meeting, after which he m~t with
Mr. X individually. Mr. Meagher testified that -they tllkeg about
Mr. X's goals and what they would be working on. Mr. Meagher
testified that Mr. X told him that he wanted to get off -
medications and to work on issues relating to his past history of
sexual abuse. Mr. Meagher testified that he told Mr. X that
coming to grips with his past sexual abuse would be difficult and
that he could expect to be anxious and tearful. He test'if ied
that he told him that'he would be able to assist him with
techniques to relax himself and referred him to a document
entitled "Twenty-four Stages of Growth for Survivors of Incest"
He testified that he provided Mr. X with a copy of this document.
The document does not relate in any way to bioenergetic therapy.
\
20
Meetings between social wor~ers and residents are held in
the dining room of the group home. The dining room has glass
doors and there are frequent interruptions because of other
residents going to and from the kitchen. According to Mr.
Meagher's evidence, at their next meeting he spoke with Mr. X
about the details of his h,tstory of sexual abuse. Mr. Mea<;Jher
testified that Mr. X was very upset and was paving difficulty ~
"
expressing-his anger, pain and sadness. Mr. Meagher testified
that Mr. X told him that he felt suicidal. Arrangements were
made for Mr. X to return to the hospital.
Mr. Meagher met with Mr. X again after his discharge from
the hospital and return t9-the group home. Again, there was
discussion about Mr. XiS past history of sexual abuse. Mr.
Meagbertestified ~hat Mr. X asked him not to use clinical words
in the discussion as h~ did not wish to have the experience ,
dignified by the use of clinical words. Mr. Meagher tef?tified
that he complied with this request. He further testified that at
this session he reassured Mr. X that he was in ~o way responsible
for what ,had happened to him and that Mr. X seemed reassured.
Mr. Meagher testified that at this session he taught Mr. X some
deep breathing exercises to help him relax.
According to Mr. Me,agher's evidence, it was at the next
session that the topic of bioenergetic therapy was raised with
Mr. X. He testified that Mr. X was experiencing nightmares
21
relating to his past sexual abuse Mr. Meagher testified that he
felt that bioenergetic therapy might be of assistance to Mr~ X
and he told Mr. X about it. According to Mr. Meagher's
testimony, he specifically referred to it as bioenergetic therapy
and explained that it would involve touching his body to assist
him in unblocking his feelings Mr. Meagher testified that he
also explained to Mr. X that he might perceive the touch as
sexual abuse and told him that the therapy would be conducted at
his direction. According to Mr. Meagher's testimony, Mr. X.
consented to the therapy. Mr. Meagher testified that Mr. X
identified his stomach as an area where he felt pain and he then -
asked Mr. X for his consent to touch him there. Mr. X consented
and Mr. Meagher asked him to undo his belt in order that his
stomach area would be unrestricted. Mr. Meagher testified that
he then massaged Mr. X's stomach area for a period which he
estimated to be five to nine minutes. They were interrupted when .
~
residents of the home came through the dining room and on those
occasions Mr. Meagher stopped massaging Mr. X's stomach. Mr.
Meagher testified that upon commencing the massage and at the end
of the session he asked Mr. X if he was comfortable with the
touch. Mr. Meagher testified that Mr. X told him that he was.
Mr. Meagher testified that he suggested that their next session
take place in his car so that they would not be interrupted and
that Mr. X concurred with this suggestion
According to Mr. Meagher's testimony, the next session with
I
(
22
Mr. X took place in his car, parked on a residential street about
four blocks away from the group home. Mr Meagher testified that
the location was cloE?e to, but not at, the Scarborough Bluffs.
He testified that ,it took place at 3.30 or 4:00 p~m. and that
there were people in the area. He testified that they a9a~n
discussed Mr. .X/s nightmares and strategie~ for dealing with
them. Mr. Meagher testified that h~ again, asked for consent to
engage in massage. Mr. X consented and Meagh~r again massaged
Mr. X's stomach.
As previously noted, Mr. X testified that there was one
occasion when Mr. Meagher rubbed his stomach in the car. Mr.
Meagher!s evidence, however, was that there was a second session
in the car, at his next meeting with Mr. X. According to Mr.
Meagher's evidence, the sa~e issues were discussed, he raised the
issue of massage, and Mr., X consented to it. Mr. Meagher denied ,
that he undid the button of Mr. X's pants on either of these
occasions. He testifie~ that his recollect~on was that he asked
Mr. X to undo his button so that his stomach would be exposed in
order that he could massage it. Mr. Meagher testified that he
felt that the therapy was assisting Mr~ x. He testified that at
the time of their second meeting in the car Mr. X told him that
he was no longer experiencing nightmares.
Mr. Meagher testified that on the next occasion that they
met, Mr. X told him that his nightmares had returned He
\
23
testified that Mr Meagher told him that he had undergone a
medical examination which had included a rectal examination and
had brought back his nightmares According to Mr. Meagher, Mr X
I
identified his genitals as ~n area where he was experiencing
pain. Mr. Meagher testified that he told Mr X that he would
never touch him there. He testified that he did not engage in
~
any bioenergetic therapy at this session because he did not feel
that the circumstances were appropriate to do so He took Mr. X
to an appointment he had with a psychiatrist Mr~' Meagher
testified that after the appointment Mr X seemed anxious and he
indicated that he wished to return to the hospital. The next
day, Mr. X told Mr. Meagher that he felt suicidal and Mr. Meagher
took him back to the hospital. Mr. Meagher testified that he did
not feel that the therapy that he had been providing was the
cause of Mr. X feeling suicidal. He testified that "he felt that
the therapy that he had provided was of benefit to Mr. X but that
Mr. X required more intensive therapy. Mr. Meagher testified
that he saw Mr X about six weeks later at the hospital and that
Mr. X thanked him for the assistance that he had'provided to him.
Mr. Meagher acknowledged that he did not speak to his
supervisor about his use of bioenergetic therapy. He testified
that he did not usually discuss specific details of his treatment
with a supervisor He acknowledged, however, that he should have
discussed the practice of bioenergetics with his supervisor Mr
Meagher also acknowledged that his prior experience 'in which
\ (
24
criminal charges were laid as a result of engaging in
bioenergetic therapy elsewhere alerted him to the dangers of this
kind of therapy He testified that although he felt that the
therapy was beneficial to Mr. X, he would never do it again. Mr.
Meagher testified that he recognized that he should have informed
another health profes~ional about the nqture ~nd effects of the
therapy that he had been providing to Mr. X
with respeqt t9 Mr. Y, Mr. Meagher testified that he first
came to know Mr. Y when Mr. Y was an inpatient at the hospital in
May, 1991. There was some suggestion in the course of cross-
examination of the Employer's witnesses that Mr. Y had not
disclosed past sexual abuse while he was in the Hospital.
However, in the course of his evidence Mr. ~eagher testified that
he was "not sure" whether Mr. Y had disclosed the fact that he
had been victim of sexual abu~e while he was an inpatient. In .
-
cross-examination, Mr. Meagher was shown a copy of Mr. Y's chart,
which indicated ,that he had disclosed past sexual abuse by a
family member. Mr. Meagher testified that he was aware that Mr.
Y did not like to be touched by men as Mr. Y had advised him of
that on one occasion when he had put his arm around him.
Mr. Y discharged himself from the institution against
medical advice. Mr. Meagher testified that after Mr. Y's
discharge, Mr. Y called him on three occasions and told him that
he wanted to see him. Mr. Meagher advised Mr. Y that he should
\
25
see someone from outpatients but Mr Y told him ~hat he wanted to
see him Mr Meagher testified .that he finally agreed to see Mr
Y on one occasion only, on the condition that Mr,. Ywould make an
appointment with the outpatient department. Mr. Meagher arranged
to meet Mr. Y around 9 00 p.m. at his home, after finishing work
in his other position, the office of which was in the area of Mr.
Y's residence. Mr. Meagher testified that he has v;isited many ~
patients in their homes in the course of carrying out, duties- as a
social worker, including patients of the Whitby psychiatric
Hospital.
Mr. Meagher testified that after exchanging pleasantries
with Mr. Y he asked him what he wanted to talk about. He
testified that Mr. Y was not able to express'himself but he
identified feelings of fearfulness and anxiousnes's. Mr. Meagher
testified that he then tried to get Mr. y to "open up". He
testified that he asked Mr. Y what part of his body reacted when
he thought about the events and that Mr. Y identified the area as
I
his stomach. Mr. Meagher testified that he then told Mr. Y about
bioenergetics and described it as touching that disarms muscles
to allow a person to get in touch with feelings. Mr. Meagher
said that the therapy would involve touching his stomach and Mr.
Y advised him that he did not wish him to do so. Mr. Meagher
testified that he did not pursue the matter
Mr. Meagher testified that he then brought up the subject of
26
sexual abuse, because he thought thi.s might be the area that Mr
Y was unable to talk about. Mr. M.eagher testified that when he
brought up the topic Mr. Y appeared to be interested in Mr.
Meagher pursuing this issue. He then asked him about sexual
involvement with his brother. Mr Meagher testified that he
could not recall Mr. Y's verbal response but that again his sense
was that Mr. Y was interested in having this issue ,pursued. _r
Mr. Meagher acknowledged using the language Mr. Y referred to and
further acknowledged that he used it on his own initiative. He
testified that h~ expressed himself in this manner because he
felt that it would assist Mr. Y in expressing what was troubling
him. Mr. Meagher testified that althoug~ the record indicated
that Mr. Y had already disclosed past .sexual abuse, a fact that
he would have been aware of at the time, there are many levels of
disclosure and Mr. Y may have wished to disclose additional
information. ,
-
Mr. Me~gher testified that he assessed Mr. Y's mental status
and he did not consider him to be suicidal. He confirmed with
Mr. Y that he had made an appointment through outpatients. Mr.
Meagher testi~ied that he attempted to contact a nurse in
outpatients the following day to advise of (his discussions with
Mr. '1.. He testified that he was. unable to reach her and because
of his involvement in other matters did not pursue attempting to
reach her. Mr. Meagher testified that in retrospect, it would
have been better for him to simply have talked to Mr Y, rather
!
I
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27
than suggesting bioenergetic ,therapy
Mr R. Pepler, as previously noted, is the person identified
by Mr. Meagher as the source of some of his information about
bioenergetics and body work. Mr. Pepler obtained training in
bioenergetic therapy at what was then known .as theInsti~ute of
Bioenergetic Analysis, now the Toronto Society for 'Bioenergetic "
Analysis. He completed two years of a four year'program. Mr.
Pepler also trained in therapy which included body ~ork at the
Bayview Therapy Centre between 1983 and 1984. He a~so obtained
training in London England in social phenomenology Mr. Pepler
obtained a M.S.W. in 1986. After graduating he has practised
psychothera~y on a part-time basis, concluding in about 1991.
One of the areas of Mr. Pepler'S interest, and the area of his
master's thesis, is body work, including bioenergetics. Mr,.
Peplar testified that' touching, including massage, was part of -
his training in bioenergetics. He has utilzed bioenergetic
techniques in his private practice as a therapist.
-'
Mr. Pepler has been employed at Whitby Psychiatric Hospital
as a social worker since 1988. He works in two different wards
of the hospital. Mr Pepler testified that on the psycho,therapy
unit he and another employee, who is trained as a psychodramatist
and a nurse, periodically carry out a seminar program to assist
patients in dealing with their emotions. The program includes
teaching patients exercises which are intended to help them
- -
\
28
express their feelings more openly Mr. pepler testified that
these exercises included massage techniques which involve
touching patients.
Mr. Peplar also testified that the psychodramatist's weekly
sessions for patients on the psychotherapy unit include body
work" in particular, touching patients on the pressure point ~
_r
areas ,of their bodies. Ms. Brennan, who as previously noted is
the acting director of the psychotherapy unit, acknowledged that
touch may be used by the psychodramatist, Qut ~tated tQat there
.j
would be consent and documentation in such instances. ---'.~
Mr. Pepler testified that based on his experience with
victims of sexual abuse, body work, includin9 massage, can be
useful and helpful to patients. Mr. Pepler testified that he
openly engaged in massage of patients on the psychotherapy unit ~
but ,he received a "indirect message" from his unit director that
he "didn't think much" of bioenergetics. As well, in 1991 there
was a specific discussion regarding use of massage and a decision
was made that massage would not be provided by the staff. The
unit minutes of March 19, 1991 indicate tpat:
"',
It was decided that massage would not be
considered a function of staff and that
staff that had an .interest in this area
would educate patients in doing rather
than directly provide it.
This decision r~lated to the psychotherapy unit, The minutes
would not, in the ordinary course, come to a person in Mr
I
29
Meagher's position
Mr. Pepler confirmed Mr Meagher's evidence. that he had
presented a seminar to staff regarding bioenergeti9s, that he and
Mr. Meagher had a number of discussions about bioenergetics and
that he had provided him with some written material on the topic.
He also confirmed that-he demonstrated some body work techniques --
He testified that he was unable to remember exactly which ones he
had demonstrated but he believed that one did involve touching
the stomach. Mr. Pepler testified that at the time that he was
providing this information to Mr. Meagher massage therapy was -
being used on the psychotherapy' unit and by the psychodramatist
on an individualbasis~ He testified that he had no recollection
of telling Mr. Meagher about the decision not to provide massage
to patients on the psychotherapy unit. Ms. Crawford referred Mr.
Pepler to instances in the minutes of the uni~ wherej.n ,
discussions as to appropriate modalities of treat~ent were raised
and decisions made. ,Mr. Pepler agreed that there were ~nstances
in which that did take place. He testified, however, that he
does not seek approval for all therapies used with all patients.
Ms Sadana described her familiarity with bioenergetics as
"extremely limited", however, she testified that she did not
regard it as a "mainstream therapy" for social workers. She was
of the view that it was not an appropriate therapy to be
undertaken on a short term basis Ms Sad~na was n~t aware of it
30
being practised elsewhere in the' hospital. In cross-examination,
Ms. Sadana indicated that she knew that bioenergetics was "talked
about in the clinical community" but stated that she had not read
any literature or attended any conferences dealing with this
particular form of therap~. Ms. Sadana testified that she
considered the use of slang language by a social worker to be
inappropriate. Mr. 'Ballantyne, who is a social worker, testified
that he felt that, it was inappropriate for a social worker to use
slang language. He acknowledged, however, that there were some
occasions where it may be appropriate. Mr. Ballantyne testified
that such occasions would be rare and would require more than
simply a request from a patient to use such language. Ms.
Brennan also testified that she considered the use o~ such
language by a social worker to be inappropriate. However, she
acknowledged that she herself has had a request from a patient
who is a victim of past sexual abuse, to refrain from the u~e of -
clinical language because the use of clinical words were not
appropriate to ~xpress the patient's experience.
The Board heard evidence from three persons with expertise
in social work from outside the institution, two persons with a
partiCUlar knowledge of bioenergetics.
Ms. T. Firsten testified on behalf of the Employer. Ms.
Firsten is a social worker. Her-particular area of interest and
experience is/in the area of boundaries in therapeutic
j
i \
31
relationships ~er most recent endeavour has been the
organization of a conference dealtngwith sexual misconduct by
health professionals, psychotherapists and clergy. I Ms Firsten
gave evidence regarding the standards of practice of social
workers. She testified that charting interactions with clients
was a basic obligation. She also emphasized 'the importance of
pacing in a therapeutic relationship and referred to the
vulnerability of clients with a past history of sexual abuse.
Ms. Firsten indicated that because of this vulnerability, extreme
caution must be utilized in connection with touch as a part of
therapy. Based on her review of the information provided by Mr.
X and Mr. Y to the hospital, Ms. Firsten expressed the' v~ew that
the suggestion of touch in the case of Mr. Y and the touch in the
case of Mr. X were inappropriate actions on the part of Mr.
Meagher and characterized them as "boundary violations,". Ms.
Firsten also referred to an obligation on the part of' a social .
.
J
worker to be fully competent in relation to any modality of'
treatment prior to engaging in it. It was Ms. Firsten's
understanding that Mr. Meagher had attended only two lectures on
bioenergetics and in her view this was not sufficient training to
engage in this kind of therapy. Ms. Firsten acknowledged that
there were no precise standards with respect to this matter She
has not studied bioenergetics. However, she was of the opinion
that Mr. Meagher was not competent to engage in bioenergetic
,
therapy and that his decision to do so was not in accordance with
the standards of practice of social work. She was also of the
(
.
32
view that his decision to utilize touch fell below standard with
respect to, the pacing of therapy Ms Firsten testified that the
use of slang language in a therapeutic r~lationship may be
inCiPpropriate, if it constitutes a boundary violation. She
acknowl~dged, however, that whether such language is
i~appropriate or a boundary violation depends on the particular
context. ~ ~
Ms. A. Fullerton also testified on behalf of the Employer.
Ms. Fullerton is the director of the Toronto society for
Bioenergetic Analysis. Ms. Fullerton's bioenergetic training
consisted of one week a month for ten months over five years.
She ~id a number of hours work under the supervision of bio-
energetic practitioners, who were psychiatrists, psychologists
and social workers. Th~ Toronto Society f~r Bioenergetic
Analysis is affiliated with an organizatio~ in New York city -
-
called the International Institute for Bioenergetic Analys~s
which determines the training to be provided by the Toronto
society for Bioenergetic Analysis.
On the issue of touch in b~oenergetic analysis,Ms. Fullerton
testified that she personally takes "quite a long time" before
she will touch clients, probably a minimum of six months. M~.
Fullerton testified that there are special considerations with
respect to tOUChing someone who has been sexually abused, as any
touch could be traumatic for them Ms Fullerton testified that
j
(
33
the rubbing of a patient's stomach "~s not bioenergetics a~ I
know it". She testified that she may ask a client' to place his
or her own hand on the stomach but tpat she would not ~lace her
own hand in that area. Ms. Fullerton acknowledged in cross-
examination that Mr. A. Degraaff was a person with sqme expertise
in bioenergetics. Mr. Degraaff was o~e of the pe~~ons who
provided training to Ms. Fullertop w~en she was obtaining ber
certification in the field.
Mr. A. Degraaff testified on behalf of the Union. Mr.
'Degraa~f's background includes three ye~~s of training at the
University of Amsterdam, after which he obtained a pre-doctoral
degree in clinical pastoral counselling. He completed a five
year training program at the Bioenergetic Psychot~erapy Institute
in Toronto, a predecessor of the organizati~n with which ~s.
Fullerton is associated. Mr. Degraaff completed a one year -
~
internship at the Toronto Institute for Human Relations. Mr.
Degraaff taught for four years at the undergraduate level in
psychology and education. He also taught for ten years at the
Institute for Christian Studies in Toronto, a graduate program
affiliated with the University of Toronto. At the time that he
J
gave evidence in these proceedings Mr. Degraaff was engaged in
private practice as a therapist and was involved in teaChing
therapists at Spadina Therapy Centre.
Mr. Degraaff testified that in his practice, bioenergetic
-
\ ,
\
34
therapy is one of a number of therapeutic approaches that he may
employ. Mr. Degraaff noted that Mr W Reich, the originator 9f
bioenergetic therapy, described tension in the body as "body
armour" . Mr. Degraaff testified that the stomach, shoulders and
neck areas are places where a person holds tension and assisting
people to relax in those areas is a way of assisting them
therapeutically. Mr Degraaff emphasized that it is important to ,-
ensure that a client is comfortable with and consents to any kind
of therapy, including touch, before it commences.
Mr. Degraaff testified that he utilizes bioenergetic therapy
of.
at two levels. At the first level he utilizes it to bring a
level of relaxation, to allow a client. to get "in touch" with him
or herself. A~ another level, once he has come to know the
client, he may utilize bioenergetic therapy on an intensive
basis. Mr. Degraaff testified that he utilizes ~assage at both ~
levels. He testified that at the first level to assist with
relaxation he may touch the patient's stomach to provide the
patient with a signal to relax in that area of the body. He
testified that touch, including massage, is a common practice in
utilizing bioenergetics in such a situation. He testified that
he would utilize bioenergetic therapy on a, patient with a history
of sexual abuse. Mr. Degraaff emphasized the importance of
consent in such situations and ensuring that the client feels
comfortable with the therapy. With respect to the matter of
bioehergetic therapy taking place in a parked car, Mr. Degraff
\
35
was of the view that privacy was of more consequence than the
location of the therapy
Since the incidents giving rise to Mr Meagher's discharge,
a specific and detailed policy has been promulgated by the
hospital in relation to the therapy of ,sexually abused c'lients.
This policy includes the following provisions under the heaping ~
"Suggestions for 'Practice":
2) If the client does not disclose sexual abuse, but
you suSpect it, or if client does not want to
discuss disclosed abuse, you can offer general
information and edUcation about sexual abus~,
examples of how abused people may feel, etc. This
can help to normalize client's feelings for them
and will let them know that you are comfortable
hearing about the sexual abuse, when they are
ready to discuss it.
3) Be prepared to hear specific and graphic details.
. . .
8) Do this therapy in a clinical setting only (e.g., ,
office, hospital grounds), as this places
appropriate boundaries ,and context to the work.
9) Do not initiate any physical touch at all with
any client with whom you do not have specific
consent to do so, and a trusting relationship.
Be aware of whose need it is to touch in
assessment/therapy.
10) Use extreme caution and good judgment in 9ffering
any physical comfort in the context of assessment/
therapy
. . .
13) Document content of therapy sessions, including
clients reactions during and after sessions, and
document any physical contact between therapistl
client, as well as context in which it occurred.
.
16) Immediately document any physical contact between
\ \
\
36
therapist and client and the context in which
this occurred.
. ..
18) As in all cases, be attuned to transference/counter-
transference issues With sexually abused clients,
dependency and fear of abandonment can be a major
clinical feature.
. As previously noted, while it was the Employer's initial
, position that Mr. Meagher had engaged in ~exual advances, this ,r
was not the position ultimately taken. The essence of the
Employer's position in final argUment was that in a number of
respects>Mr. Meagher failed to meet the stanqards of a social
worker and that the failure was of such seriousness and of such a
fundamental nature that the employment relationship is no .longer
viable. Mr. Wright argued that there had been a change of
position on the part of the Employer in the course of these
proceedings, a submission with which Ms. Crawford took issue. It
is unnecessary to address this matter specifically, as we agree ~
with Ms. Crawford's ,submission t~at the allegations upon which
the Employer ultimately relied in argument are encompassed in the
allegations set out in the letter of discharge.
In her submissions, Ms. Crawford argued that Mr Meagher
failed to meet the standards of a professional social worker in
such 'a fundamental way that there w~s just cause for dismissal.
In Mr. Wright's. submission, the Employer's case against Mr.
Meagher is really one of non-culpable deficiency Mr. Wright
argued that to uphold dismissal on that basis the Employer must
\ (
C\
37
fulfil the criteria set out in Re Edith Cavell Private Hospital
and Hospital Employees Union. Local 180 (1982) 6 LAC ( 3d) 229
(Hope) at p. 233
An employer who seeks to dismiss an employee for a
non-culpable deficiency in job performance must
meet certain cr~teria:
(a) The employer must define the level ,of job
performance requir~d . ,~ ,r
(b) The employer must establish that the standard
expected was communicated to the employee.
(c) The employer must show it gave reasonable
supervision and instruction, to the employee and
afforded the employee a reasonable opportunity
to meet the standard.
(d) The employer must establish an inability on
the part of the employee to meet the requisite
standard to an extent that renders her incapable
of performing the job and that reasonable, efforts
were made to find alternate employment within
the co~petence of the employee.
(e) The employer must disclose that reasonable
warnings were given to the employee that a failure ~
to meet the standard could result in dismissal.
While we agree with the proposition that an employee's
actions are properly viewed in the context of the standards of
performance defined and communicated to employees, it is also our
view that employers are entitled to expect that professional
employees coming into a position with academic qualifications and
training operate within the standards of their profession. The
case of Edith Cavell involved a kitchen employee. Clearly, there
must be differing levels of standards of performance that an
employer is entitled to expect, depending on the nature of the
training and the profession of the employee
\ I
\
\
38
Mr Meagher has acknowledged that he should have discussed
engaging in the practice of bioenergetics with his supervisor.
He was clearly wrong in failing to do so However, the context
of his actions is important in relation to considerations of
discipline. We agree with Ms. Crawford's submission that part of
that context is that Mr. Meagher was a professional social
-
~
worker, charged with the responsibilty of dealing with vulnerable
clients in an institutional setting. As well, however, unlike
the situation that presently exists, there was no written policy
dealing with this kind of therapy. Accordingly, in engaging in
bioenergetic therapy, Mr. Meagher was not acting in contravention
of any clearly defined policy of the institution. As established
in the cross-examination of Mr Pepler, there are matters of
practice that are discussed with supervisors However, it was
not established that there is no scope for independent judgment
-
and discretion with respect to therapeutic approaches. While the
evidence overall indicated that bioenergetic therapy is not a
mainstream therapy, Mr. Ballantyne, Ms. Firsten and Ms. Sadana
all acknowled~ed that that it is an approach accepted by some
members of the' social work profession. As in many areas, it is
apparent that within the therapeutic field there are different
theories and approaches to clinical problems. There was a
seminar on this topic as part of an educational program at Whitby
Psychiatric Hospital. There was no suggestion from the evidence
that there was an indication at the seminar that the institution
specifically supported bioenergetic therapy, and indeed, it was
\ (
39
ultimately decided that therapy involving massage would, not be
used on the psychotherapy unit. However, bioen~rgetic therapy,
or at least aspects of it, has been practiced to some extent in
the institution with respect to this latter point, we note that
there was no suggestion to Mr. Meagher in the course, of his
evidence that he was made aware of the. restrictions on massage
implemented on the psychotherapy unit
It is the Employer's position, however, that any impression
that Mr. Meagher might have had with respect -to the legitimacy of
the practice of bioenergetics at the institution Mas specifically
addressed by Ms. Sad ana and that following that 'conver~ation Mr.
Meagher was on clear notice that bioenergetics was not an
acceptable therapeutic approach at the Whitby' psychiatric
Hospital. As previously indicated, Mr. Meagher testified that he
did not recall any such statement on the part of Ms. Sadana. Ms. .
.
Sadana was unable to recall precisely what she said,. On this
evidence we are unable to conclude that Mr. Meagher was
specifically directed not to engage in the practice of
bioenergetics with patients of the institution.
At issue is whether Mr. Meagher had sufficient knowledge of
the principles of bioenergetics to competently engage in it As
previously noted, Ms. Firsten was of the view that he did not
have sufficient knowledge to do so. However, Mr Meagher'S
background in bioenergetic therapy was more extensive than Ms.
(
40
Firsten understood it to be when she expressed tha~ opinion The
evidence of Mr. Degraaff indicated that there are t\'{o levels at
which bioenergetic therapy can be practiced and it is apparent
that Mr. Meagher was engaging in bioenergetic therapy at the
first level. As Ms. Firsten indicated, there are no absolute
standards with respect to competence to practice such therapy.
On the evidence before us and given the extent of its
utilization, we are unable to conclude that in general, Mr.
Meagher lacked sl,lfficient background in bioener,getic therapy to
competently utilize it. The preponderance of the evidence_ before
us supports the conclusion that the massage that Mr. Meagher
engaged in was a bipene~getic technique. Whil;e Ms. Fullerton's
evidence was to the contrary, Mr. Degraaff's testimony, supported
'~ <
by the evidence of Mr. Pepler, was that massage, including
massage of the stomach area, was a technique utilized in
bioenerqetic therapy. Mr. D~graaff has consider~bly more .
academic and clinical experience than Ms. Fullerton and we
therefore' prefer his evidence with respect to this matter.
Related -to the foregoing issue is the matter of Mr.
Meagher's decision to utilize this therapy, or, in the case of
Mr. Y, to attempt to utilize .this therapy, in the particular
circumstances in which he did. with respect to Mr. X, there was
some suggestion that he should not have been engaging in therapy
at all, given Mr. X's placement in the group home. However, the
evidence established that Mr. Smith anticipated that Mr. Meagher
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would be. engaging- in therapy with 'Mr ~. relating to .his past
sexual abuse Moreover, Mr Meagher's decision to use tpis type
of therapy with Mr. X does not, as suggested in the evidence of
the Employer's witnesses, necessarily indicate that ~r Meagher
had undertaken, extensive therapy. As previously noted, Mr.
Degraaff testified that bioenergetic techniques m~y be used for
therapy that is not intensive, but is essentially as an aid for ~
relaxation. It is apparent that thip is the le~el at which Mr.
Meagher utilized bioenergetic techniques with Mr. X. It is also
apparent that Mr. Meagher was not atte~pting to engage in
intensive therapy with Mr. Y.
While there was some suggestion in the evidence of the
Employer's witnesses that touch is not appropri~te in the therapy
of victims of past sexual abuse, the evidence of the Employer's
expert, Ms. Firsten, centred on consent of the client with the ,
obigation on the part of the ther~pist to recognize the special
vulnerability of these clients. The Employer's recently
promulgated policy takes the same approach. While the po~icy
certainly does not authorize bioenergetic therapy or massage, it
does not prohibit touch. The policy contemplates that there may
be touch between a therapist and client, but emphasizes the
importance of consent. The Union did not dispute the necessity
of obtaining consent and, indeeq, acknowledged that consent is an
essential aspect of any kind of therapy. Mr. Meagher
acknowledged his obligation to obtain consent prior to engaging
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in bioenergetic therapy. The significant i~sue is wh~ther or not
he did.
There was a dispute between Mr. X and Mr. Meagher about
whether or not there was an explanation of the treatment to be
g1ven and whether there was consent to' that treatment. We prefer
Mr. Meagher's evidence in this regard to th~ evidence of Mr. X. ,r
In our assessment, Mr. Meagher was a highly credible witness. Of
I particular significance in our assessment ,is Mr. Meagh~r's
testimony that there were two sessions with Mr. X in the car.
Mr. X alleged only one session in the car' anq there would, appear
to be no reason for Mr. Meagher to have acknowledged a second,
except for a desire to tell the whole truth about the events.
Mr. X was inconsistent in his evidence with respect to the timing
of his alleged advice to Mr. Meagher that he did not like to be
touched. Most fundamental, however, in terms of our ~ssessment of -
Mr. Xis credibility is that the statement, of claim issued on his
behalf contains allegations that are entirely inconsistent with
the evidence he gave before us. This same consideration applies
in relation to Mr. Y's evidence The issue of whether Mr. X told
Mr. Meagher that he did not like to be touched is relevant to the
issue of consent. Given Mr. X's contradictory evidence as to
when he made this statement to Mr. Meagher and our general
assessment of the credibility of these two witnesses, we prefer
Mr. Meagher's evidence on this point Moreover, given that it
was clear that he sought consent from Mr. Y, it is likely that he
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would have sought consent from Mr. X as well Accordingly, we
accept that Mr. Meagher explained the nature of bioenergetic
therapy to Mr. X and that Mr. X consented to the ~perapy On the
issue of whether Mr. Meagher provided Mr Y with information
about the therapy other than simply indicating that he wished to
rub his stomach and that it would make him feel better, we accept
Mr. Meagher's evidence on this point Accordingly, in relation -,
to Mr. Y, it is our conclusion that Mr Meagher acted
appropriately in establishing a foundation for informed consent
Mr. Y did not give consent and Mr. Meagher, apprqpriately, did
not pursue the matter.
We turn now to the issue of the language that Mr. Meagher
employed. For the reasons outlined previously, we found Mr.
Meagher to be ~ more reliable witness than Mr. X and we prefer
his evidence to that of Mr. X with respect to who initiated the - .
use of non-clinical terms. Both Ms. Firsten and Mr. Ballantyne
acknowledged that the use of non-clinical terms may be
appropriate in some instances in a therapeutic relationship.
While it may have been more appropriate for Mr Meagher to
encourage the use of clinical lang~age with Mr. X" we are unable
to conclude that his actions in this regard are properly viewed
as culpable.
In the case of Mr Y, Mr Meagher acknowledged that he
iinititated the use of non-clinical language. Th~re was a
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conflict in the evidence as to when this language was utilized
For the reasons outlined previously, we prefer the evidence of
Mr Meagher to that of Mr Y and it is our conclusion that Mr.
Meagher utilzed non-clinical language when he was at Mr. Y's
apartment. We accept that in doing so, Mr. Meagher was
attempting to assist Mr. Y with his difficulties in expressing
,~
himself. While Mr. Meagher was perhaps overly blunt, his motive
was clearly therapeutic. We note that the Employer's policy
established subsequent to the events in issue here indicates that
therapists are to be prepared for the use of graphic language
when dealing with victims of past sexual abuse. The policy also
contemplates actions on the part of the therapist to assist the
client in knowing that the therapist is comfortable in hearing
about the sexual abuse. While the policy does not suggest that
the therapist is to initiate the use of such language, it does
contemplate that graphic language may occur in therapy. ,
As previously noted, one of the concerns of the Employer in
relation to Mr. Meagher's contacts with both ,Mr. X and Mr. Y
related to the pacing of the therapy Mr. Meagher was clearly
somewhat forceful in attempting to get Mr. Y to come to the point
of his concerns. However, his actions must be viewed ~n context.
Mr. Y persisted in getting Mr. Meagher to come .to see him. and Mr.
Meagher had ultimately agreed to do so He attended at Mr. Y's
home, late in the day, at which point Mr Y was not forthcoming
about what he wished to speak to him about It is understandable
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that Mr Meagher would have wanted to make his visit productive
in terms of getting to the heart of the matter. While w~ accept
the' Employer's position that there are mqre suita~le places for
therapy, in our view, Mr Meagher's sU9gestion of massage therapy
was an attempt to assist Mr. Y. The better approach, as Mr
Meagher acknowledged, would have been toh~ve simply listened to
Mr. Y. In relation to Mr. X, a parked car is clearly not the
most suitable place' for therapy. However, in our view, Mr.
Meagher's decision to engage in therapy there was cle~rly
motivated by logistical concerns associated with t~e
interruptions in the group home.
with respect to the issue of pacing in relation to the
treatment of Mr. X, our conclusions that the bioenergetic therapy
was explained to Mr. X, that it was initiated ,only after a number I
of meetings and that it was utilized not as intensive therapy but ~
as aid to assist him in relaxing, compel ~s to conclude that Mr.
Meagher was sensitive to the issues of pacing in his dealings
with Mr. x. In assessing this situation we have be~n mindful of
the fact that there are many circumstances in which therapeutic
approaches may well prove to be ineffective for reasons that
cannot always be attributable to the particUlar choice of
therapy. It was apparent from the evidence before us that
transference, which may result in hpstility to the therapist, is
not an uncommon feature of therapeutic relationships
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Mr. Meagher's circumstances arose from a desire to assist
his clients therapeutically which was not sufficiently tempered
by adherence to the necessary protocol in a;ninstitutional
environment. In failing to fully document his treatment of his
clients and failing to discuss the utilization of bioenergetic
therapy with his supervisors, Mr Meagher left his actions open
to misinterpretation, a scenario which he had faced previously as .~ ~
a result of practicing bioenergetic therapy in a different
environment. The possibility of such a misint~rpretation is a
significant concern for an institution such as the Whitby
psychiatric Hospital.
Social workers, like other health care professionals, must be
held to the high standards of their profession. Mr. Meagher was
in breach of a fundamental obligation ofa health care
professional to record and report. His failure to consu~t with -
his supervisor about the use of bioenergetic therapy when he knew
of ~ts potential for being construed as sexual assault was a
significant failing on his part. As Ms. Crawford emphasized, his
~eniority is. not extensive. However, his record .is clear and his
appraisals are extremely positive. There are other mitigating
circumstances which we have referred to in the course of this
decision. Mr. Meagher has acknowledgedcthat he should have
conducted himself differently' and we are confident that he is
capable of responding to the Employer's concerns about his
actions in connection with this matter While we accept that the
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circumstances of this case properly give rise to discipline, it
is our view that the ultimate sanction of discharge is clearly
not appropriate
In dealing with the issue of penalty; we are mindful of the
fact that principles of progressive discipline contemplate that
the disciplinary process will ordinarily commence with ,'" --
the most mild form of discipline, a letter of warning. However,
the circumstances of a situation may indicate that a more severe
penalty is appropriate. In our view, those circumstances exist
in the case before us and Mr. Meagher's actions merit a
significant suspension. It is our conclusion that a suspension
of one month, that is, twenty working days, is an appropriate
penalty, having regard to all of the circumstances of this case.
Accordingly, a letter of suspension reflecting the findings .
of this Board is to be substituted for' the letter of dismissal.
Mr. Meagher is to be reinstated to his former position with full
seniority but without compensation for the twenty day period of
suspension. In all other respects he is to be made whole. The
Board will retain jurisdiction to deal with any issues of
compensation or any other difficulties which the parties may
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48
experience in. implementing this award
Dated at Toronto, this 27th day of April, 1995.
,
~~~; ji:~rson ,r ~
- M. Lyons - Hember_. (. .
"I Dissent" (dissent to follow)
D. Clark - Member
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DISSENT
iA
GSB #757/93
OPSEU (,MEAGHER)
and The Crown in Right of Ontario
(Ministry of Health)
I have read 'the majority decision and, with 'respect, I
dissent.
\
The majority of the panel concluded that thegrievor' should
only receive a twenty day suspens'ion I disagree. In my
opinion, the Employer sufficiently demonstrated that the
grievor's conduct, at best, fell so far below the acceptable
standards for a Social Worker that discharge was the
approp~iate penalty
I
As in any case where there is Qonflicting evidence,
credibility of the witnesses becomes a critical factor in
arriving ata decision In the award the majority went into
great detail explaining why they preferred the evidence of
the grievor when it conflicted with the evidence of Mr X
and Mr y The majority also explained their reasons why
they arrived at cerotain conclusions when examining the
evidence of some of the Employer's witnesses against the
evidence of some of the Union's witnesses
This member, with respect ,( disagrees with many of the
conclusions reached by the majority Specifically,
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this member does not agree with the following conclusions
1. The grievor had sufficient knowledge of the principles
of bioenergetic therapy to competently engage in it,
2. The grievor was not specifically directed not to
engage in the practice of bioenergetics with patients
"'""
of the institution,
3. A parke4 car was not the most suitable place for
therapy but the grievor's decision to engage in the
therapy was motivated by logistic concerns associated
with interruptions in the group home, and
4 The grievor was sensitive to the issues of pacing in
I' his dealings with Mr. x.
1
The grievor's "training" in bioenergetic therapy consisted
of the following
1. Attending two one hour lectures by a child abuse
consultant, Mr. Fair;
2 Discussions with Mr Fair after the lectures,
3. Reading a~ticles and books;
4. A two hour seminar by a fellow social worker,
Mr Pepler,
5. Ongoing discussions with Mr. .Pepler about
bioenergetic therapy and techniques,
6 Demonstrations by Mr. Pepler of a number of
techniques, including massage of the stomach area;
v 7. Reading Bioenergetics by Dr. Lowen, a psychiatrist, and
8. Reading ,other texts on bioenergics.
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One text referred to massage as pa:rt of bioenergetic
therapy The panel, however, was not directed to a specific
reference to stomach massage
Mr Pepler only completed two years of a four year program
for certification as a bioenergetic therapist. His thesis
dealt, in part, with bioenergetics The grievor obtained
some of his knowledge about bioenergetics from Mr Pepler
During the grievor's discussions with Mr Pepler about
bioenergetics, not once did he mention the fact he was
employing this therapy with Mr X and Mr Y
The grievor was dealing with two extremely vulnerable
clients. Mr. X's diagnosis was depression and personality
disorder He had been a victim of past sexual abuse Mr y
had been treated for depression and he too had been the
victim( of past sexual abuse. The grievor testified that he
even told Mr X that he might perceive the grievor's
touching as sexual abuse When dealing with this type of
client and when employing the~apy which was not mainstream,
one would hope, if not expect, the therapist to be highly
trained in this type of therapy In the opinion of this
member, the grievor, by attending some lectures and seminars
and by reading about it, was not sufficiently trained to
engage in this ttlerapy given the vulnerability of his
clients
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It is not as if the grievor was unaware of the possible
consequences of employing this type of therapy. He was.
When the grievor had also been doing some work for another
Employer, he had been charged with sexual assault as a
result of engaging in stomach massage of a client. He was
acquitted of the charges.
Ms. Sadana, the Director of Social Work, testified that when
"-
the grievor informed her he had been charged with sexual
assault, she "said something to the effect that beqause of
/ /
this we don't practice this type of therapy at the
hospital" The grievor denied that she made a statement to
him indicating the kind of treatment he had referred to did
not take place in the hospital
Ms Sadana testified that her knowledge of bioenergetic
therapy was extremely limited She testified that she did
not consider it to be a mainstream therapy for Social
Workers and it was not advocated by the hospital. Common
sense would dictate that if an employee told someone he had
been charged with sexual assault for engaging in a non
mainstream therapy which that-person knew very little about
and, to their knowledge, was not advocated in their work
environment, that person would be concerned Thi s 'member
preferred the evidence of Ms. Sadana to that ,of the
grievor's in that it is far more likely that Ms. Sadana
would have indicated her concern to the grievor about using
this type of therapy in the hospital
'"
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The grievor employed bioenergetic therapy with Mr. X on two
occasions in his car The grievor decided to conduct this
therapy in his car because he was constantly being
interrupted in the group home when he employed it with Mr.
X. The grievor wanted privacy so he took Mr X to a
residential street and parked his car In the 'grievor' s
words fI at that time of day kids were coming home from
.
school and peo,ple were going into houses fI . When counsel for
the Employer asked the grievor if people walking by his car
could see in the car window the grievor stated "I do not
think_they could, they could see in the window but not my
massaging his stomach . I have a sense if you walk by my
car it's difficult to see the lap area "
. . .
This member has difficulty understanding the grievor's
logic The grievor wanted privacy in order to engage in the
therapy. At l:east in the group home setting the 9ther
clients would know the grievor and Mr. X. Parking the car
on a residential street is a totally different matter'~
Children coming home from school who might have looked in
the car window and seen the grievor massaging Mr. X's
stomach would not have known the car's occupants nor
understood what was happening.
Concerning the issue of bioenergetic therapy taking place in
a parked car, Mr Degraaff (who testified on behalf of the
Union) was of the view that privacy was of more consequence
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41
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than the location of the therapy The grievor, however,
only speculated that the school children could not see into
his car at the lap area. In the opinion of this member, the
grievor should never have employed this therapy in a parked
car.
t
Mr Degraaff is not a Social Worker, nor has he ever been
trained as a Social Worker. He admitted he could not give
an opinion on the scope of practice for a Social Worker As
such, he also admitted he could not comment on the grievor's
abilities as a Social Worker He testified he had never
worked in a provincial psychiatric hospital and had never
been part of a clinical team, nor was he acquainted with
these patients. In cross-examination he indicated he was
not prepared to give his opinion on the facts of this case
He indicated that he felt qualified to give evidence only as
to the nature and practices relating to bioenergetic therapy
and what he would have done in particular situations
Accordingly, I would not have given his evidence much
weight
Ms. Firsten, who testified on behalf of the Employer, is a
Social Worker. She gave evidence regarding the standards of
practice of Social Workers. She also emphasized the
importance of pacing in a therapeutic relationship aIld
referred to the vulnerability of clients with a past history
of sexual abuse Based on her review of the in,formation
provided by Mr X and Mr y to the hospital, Ms Firsten
expressed the view that the suggestion of touch in the case J
~\
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of Mr. Y and the touch in t,he case of Mr. X were
r
inappropriate actions on the part of the grievor and
characterized them as "boundary violations". Ms Firsten
indicated that. survivors of sexual abuse could readily
misconstrue touching by the therapist
As the majority pointed outr Ms. Firsten was of the opinion
the grievor had only attended two lectures on bioenergetics
and in her view this was not sufficient training to eng~ge
in this kind of therapy. The majority ~lso indicated that
the grievor's background in bioenergetics was more extetisive
than Ms Firsten understood it to be and the grievor was
engaging in bioenergetics at the first level As previously
indicated, this member does not feel the grievor had
sufficient training in bioenergetic therapy The two
clients in question did, in fact, misconstrue the concept of
touching.
This member does not feel there was sufficient pacing
between the grievor and Mr x. During the short time period'
the grievor interacted with Mr X, the grievor said he
covered a number of areas with Mr X The grievor testified
he discussed Mr. X's past history of sexual abuse, covered
the items in a document entitled "Twenty-four Stages of
Growth for Survivors of Incest", discussed bioenergetic
therapy, covered relaxation exercises to deal with his
nightmares relating to his past sexual abuse and received
I ...
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consent from Mr X to massage his stomach. The grievor also
admitted Mr X might perceive the touch as sexual abuse
Mr. X testified that the grievor never discussed the reason
for the touching, never mentioned the term bioenergetics and
never gave him the document entitled "Twenty-four Stages of
Growth for Survivors of Incest"
For reasons outiined in the award, the majority preferred
the grievor's evidence to Mr X's evidence Regardless of
this fact, this member does not feel there was a sufficient
time period for the grievor to cover all of the areas he
said he covered and still receive informed consent from Mr
X The grievor was aware Mr. X could misconstrue the
stomach massage and Mr. X did As a result, this was a
"boundary violation" in the opinion of this member
In the opinion of this member, the grievor's behaviour with
Mr X was totally inappropriate, falling well below the
standards of care or conduct expected of a professional
Social Worker The grievor's use of slang language to
describe body parts' , his lack o.f charting concerning his
meetings wi th Mr X, his failure to advise his Supervisor
that he was using bioenergetic therapy on such a vulnerable
individual, his employment -of the therapy in a parked car
where he only speculated ,school children could not see what
i
he was doing, his lack of pacing and his "boundary
'"'
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violation" was inexcusable The grievor testified that he
should have informed another health professional about the
nature and effects of the -therapy he had been providing to
Mr. x. His failure to inform another heafth professional
demonstrates extremely poor judgement.
~
Mr Y had been receiving treatment for depression while he
"
was at the hospital After his discharge he experienced
I .
ongoing depression and telephoned the grievor The grievor
arranged to meet with Mr Y at his apartment about 9 00 p m
1 during
one evening. Mr Y adamantly denied that this
meeting the grievor told him that touching him was a part of
bioenergetics or part of therapy The grievor testified he
was; aware that Mr. Y did not like to be touched by men The
evidence indicated that while Mr. Y was in the hospital he
had disclosed past sexual abuse by a family member. ~he
grievor testified when he met Mr. Y at his apartment, he
tried to get Mr Y to disclose the fact he had been sexually
\
abused In cross-e~amination when confronted with a
document that indicated Mr Y had already disclosed to the
grievor his sexual abuse, the grievor then said ,disclosure
was like p~eling an onion and stated he was looking for
abuse by another family member
The grievor testified he told Mr Y about bioenergetics and
this therapy would involve touching Mr Y's stomach
Notwithstanding the fact Mr Y declined the offer to engage
..b'
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([
in this therapy, this member does not understand why the
grievor would suggest rubbing his stomach when he knew Mr Y
did not like bei~g touched by men This member also does
not understand why the grievor would try to get Mr Y to
-disclose (or elaborate on) past sexual abuse late in the
evening away from the safety net and support of the hospital
staff -
This member does not understand why the grievor would
initiate the use of slang language to describe parts of the
body instead of using the clinical terminology. The
grievor's statement that he initiated slang terminology to
help Mr. Y express what was troubling him does not, in this
member's opinion, make sense According to Mr Y, he told
the grievor in the past t}:lat he did not like the grievor
using the slang terminology The majority of the panel
concluded that while the grievor was perhaps overly blunt,
his motive was clearly therapeutic. In this member's
opinion, his initiation of this language was uncalled for
In addition, the grievor did not chart his visit with Mr Y
nor did he contact the Nurse in the Outpatients Department
to advise her of his meeting with Mr Y
In the opinion of this member, the grievor's behaviour with
Mr Y was also totally inappropriate, falling well below the
)
standards of care or conduct expected of a professional
-- ---- ------
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If Social Worker The grievor's use of sexually explicit slang
language, lack of charting, lack of follow-up and his
attempt to utilize this therapy on a vulnerable, depressed
individual, a'Way from the support of the hospital staff, was
inexcusable. The grievor admitted" in retrospect, it would
talked I
have been better for him to simply have to Mr. Y
rather than sugges,ting bioenergetic therapy This also
demonstrates extremely poor judgement
~
In the opinion of this member, the Employer provided
sufficient evidence to demonstrate that the grievor
inappropriately employed bioenergetic therapy without
sufficient training, without regard to its appropriateness
for patients who had been victims of sexual abuse and the
grievor did so without documenting his actions and without
authorization from his Supervisors His lack of judgement
and his unacceptable behaviour fell well below the standards
expected of a professional Social Worker.
The grievor had only worked for the Ministry for about three
and one half years. The grievor's positive performance
evaluations of February 27, 1990, May 30, 1990, September 4,
1990, November 1 , 1990 and January 29, 1993 were all done
before the Employer ever became aware (March 1993) that the
grievor had been using bioenergetic therapy.
Accordingly, this member would have upheld the discharge
~~. ~
Don M Clark
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