HomeMy WebLinkAbout1994-1682OHRT96_09_30
O/llTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARKJ
GRIEVANCE COMMISSION DE
1111 SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 3215-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILEITELECOPIE (416) 3215-1396
GSB # 1682/94
OPSEU # 94F403
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Ohrt)
Grievor
- and -
The Crown in Right of ontario
(Ministry of Health) Employer
BEFORE R L Verity Vice-chairperson
FOR THE M Bevan
GRIEVOR Grievance Officer
ontario Public service Employees Union
FOR THE C Nikolich
EMPLOYER Counsel
Legal Services Branch
Management Board Secretariat
HEARING 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 PsychIatnc 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
senes 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 umt. What actually transpired
between the gnevor and the patIent was the subject of many conflIctIng verSIOns of events
at the heanng 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 mamc
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 psychiatnst 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 gnever and the patIent. The gnevor 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 gnevor was mstructed to "ease off' or "let go" but he contmued to maintain
the headlock. Shortly thereafter, he released the restramt and freed hImself from the
patIent. PatIent "A" uttered a torrent of abuse, regamed hIS standmg pOSItion and, while
m 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 restramed on two separate
occasions. PatIent "A" was mJured.
The mCldent provoked a number of separate proceedmgs. A complamt was lodged
by patIent "A" that he had done nothing wrong and that he had been attacked by the
gnevor 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 conflIctmg
statements as to what had taken place. Head Nurse Joy Ross, however, laid a charge of
assault against the gnevor under s.266 C.C C. This charge was subsequently dIsmissed on
April 24, 1995 followmg a trial in London before Judge AJ Baker of the Ontano Court
(Provmcial DIvision) Further, allegatIons agamst the gnevor before the DIscIpline
CommIttee of the College of Nurses of Ontano were withdrawn pursuant to the terms of
a Memorandum of Settlement dated February 13, 1996, WIthout admIssion of liability on the
part of the gnevor
At the outset It should be stated that the grievor was prevIously dIscharged on April
6, 1988 for alleged patIent abuse and subsequently remstated by a deCISIon of the Gnevance
Settlement Board #0250/88, (Dissanayake)
4
In the instant matter, the hOspItal conducted an Internal investigation Following a
pre-dIsciplinary heanng, the gnevor 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 Bavtist Housing Society
(Grandview Towers) and Hospital Emplovees' 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 mother
occupational fields. In tlus industry arbitrators are required to have regard not only to the interests of the
gnevor and of the employer but also must have regard to the public mterest. Both employer and
employee are reposed WIth a public trust m 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, m addItIon to regular duties assume a role whIch may best be described as SImilar to that of
a "surrogate" family
Before turmng to an assessment of the facts, It IS useful to address the standard of
5
proof reqmred 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 0 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 crrcumstances 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 fmding.
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 UDlon. 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 bnef 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
gnevor 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 mvoluntary Accordmg to hIS evidence, he was in the process
of walking to the front corndor door when the grievor told him to put his shoes on. Patient
"A" testIfied that he said "fuck you" and kept on walkmg and that when he was four or five
steps from the main corndor door the gnevor Jumped hIm from behmd, placed hIm m a
headlock and proceeded to "bang" hIm several times against the railing. The patient
maintained that he had no intentIon of leavmg the hospItal. At the heanng, patIent "A" saId
that he dIdn't remember much about the incident. In hIS words, "I was pretty SIck at the
time." In cross-exammation, 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 DIce guy" When asked by Ms. Nikolich
whether he (the patient) sustained any injuries as a result of the mCldent he recalled slight
stIffness of the neck but denied that there was any bleedmg or cuts, or other mJunes. In
hIS statement to hospItal mvestIgator Pam Murray (ExhibIt 27), he complained of a bruIse
on his nght 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 gnevor gave a very dIfferent recollection of events. He mamtamed that, m his
capaCIty as the patIent's pnmary nurse m the bookmg of appomtments and SOCIal actIVIties,
he had a good workmg relationship wIth patIent "A" The grievor's testImony was to this
effect: earher that afternoon patient "A", who was dressed m hIS pyjamas and wIthout shoes
and socks, told the gnevor to "fuck off' and that he was not gomg to put hIS shoes on, he
(the gnevor) was aware that the patient had been medIcally certified earher that afternoon
7
and mIght try to escape, Registered Nurse Chns Hamza had spoken to him about the
advisability of lockmg the main corndor door; the gnevor 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 obsetved patIent "A" in
an agitated state dressed m street clothing walking rapIdly towards the corridor door; the
gnevor 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 shoutmg obscenities and
demanding to be released, kIcked and attacked the gnevor by pinning hIm against the door
while grabbing for his keys, the gnevor attempted to restrain the patient by holding hIm
down m a 90 degree angle and then placing hnn in a headlock; both he and the patIent were
movmg back and forth dunng the attempted restramt; he was kIcked and punched by the
patient dunng the restraint; no staff member came to his defence in a tImely fashIon to
assist m restraining the patIent; and he was forced to release hIs gnp by the patient's
strength and in the process hung onto "somebody's shoulders"
The gnever testIfied that approxImately 20 or 30 mmutes after the mCldent, while
chartmg m the chartmg room, he had a conversatIon wIth Head Nurse Joy Ross m whIch
she accused him of deliberately grabbmg her by the shoulders and shoving her m the
directIOn of the patIent. The grievor explamed to MISS Ross, Without apparent success, that
he was unaware that he had grabbed her shoulder followmg the patIent's release and that
he had been thrown off balance The gnever also acknowledged that he had a brief
8
conversation with RPN Kathryn Murphy followmg the mCldent 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 evemng he was suspended by Nursmg Night Co-ordinator Nora
Chnstensen who refused to give a reason for the suspension.
Both the gnevor and the union adamantly demed all allegatIOns of patient abuse.
Of the 15 wItnesses who testified for the employer, however, several were critIcal of the
grievor's actIons to varymg degrees.
Joy Ross was the charge nurse on Ward G-2 on the day m 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 psychlatnst 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 Chns Hamza, MISS Ross satIsfied herself that the corndor door would be
locked as a preventative measure, m her words, "to avoid any type of power struggle" Miss
Ross testified that followmg the 711 alarm she attended the scene and saw the patIent "bent
over like a sandWIch" WIth the gnevor on top According to MISS Ross, she heard the
patIent complam "I can't breathe, you are hurtmg 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 arnval
of other staff the grievor released hIS hold, placed hIS arms on MISS Ross's shoulder and
back, pushed her m 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 mdIcated
previously, Miss Ross laId a charge of assault agamst the grievor In cross-exammatIon,
MISS Ross acknowledged that she dId not particIpate in the restraint procedure. Similarly,
in cross-examinatIOn she had dIfficulty describmg the hold used by the grievor m restraming
patIent "A" but mamtained that It was not a hold that was taught at the hospItal.
Theresa Abdey was the staff nurse m charge of medIcatIons on Ward G-2 on the
afternoon ShIft of September 20, 1994 Bnefly stated, she corroborated MISS Ross's account
of events. DespIte the fact that she was a union steward, Mrs. Abdey testIfied that, m her
opmion, the gnevor had used exceSSIve force in dealIng with the patient. In cross-
exammatIon, Mrs. Abdey testIfied that It was improper to use a headlock as a restramt and
that she heard the patIent say, m a muffled voice, "I can't breathe let go you are chokmg
me." She testified that after the gnevor released his hold the patIent's face was blue, that
he had blood under his right eye and that hIS nose was bleedmg.
RegIstered PractIcal Nurse Kathryn Murphy was the first to arnve 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
gnevor 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 deselVe 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 traimng in cnsis intetvention 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 gnevor that she had seen him force a co-worker Into an aggressive patient, a statement
WhICh the gnevor demed 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 descnptions of events.
The London Psychiatnc Hospital has a polley of PatIent Abuse by Staff (last reVIsion
February 1993) which IS well-known to staff and which forms part of the hospItal's standard
operatmg procedures. Relevant parts of the policy read as follows.
ABUSE is: The unwarranted and/or mappropnate use of physIcal force, psychologIcal stress or sexual
mvolvement; or any unwarranted, inappropnate act or omIssion, by selVice provIders mteractmg wIth
patIents.
PURPOSE.
To ensure the nghts of patients to receIve protectIOn from any form of abuse.
To provIde gUIdelInes for reportmg and investIgatmg of alleged/suspected abuse
To mform staff of theIr nghts dunng an mvestIgahon of alleged/suspected patIent abuse
11
POLl CY
1 In any case of abuse or suspected abuse, the staff to whom a patient reports abuse or anyone
wItnessing or havmg knowledge of an mcident shall report the mcident lDlmediately to the head
nurse or delegate, the nursing service coordinator and the Manager of Nursing Services.
2. All incidents of abuse and/or alleged abuse must be mvestigated immedIately by the nurse in
charge and the nursmg service coordmator
3 Staff who wItness or have knowledge of the incident shall wnte a detailed statement
(mdependently of each other) before gOIng off duty These statements are to be given to the
coordmator, who in turn gives same to manager
4 The nursing service coordmator or delegate shall conduct an inquIry and complete a detailed
wntten report.
5 Where there IS suspected physical abuse, the nursmg servIce coordmator/delegate shall request
a medical assessment. Photographs may be obtained as deemed necessary by the physiCIan.
6. The patIent shall be mterviewed and the findings incorporated into the wntten report.
NOTE. The patIent has the nght to contact the pohce at anytime concerning an allegation of
abuse.
7 The mdIvidual conductmg the mqUlry shall mform the staff member(s) concerned that an
allegatIon has been made agamst lum/her
8. Where it becomes necessary to remove staff member( s) from duty assignment, the staff is entitled
to representation.
FORMS OF ABUSE.
PHYSICAL striking, kickmg, chokIng, unnecessary roughness, pushing, shoving, grabbing and shakmg.
Another standard operating procedure (ExhibIt 19) dated October 90 and revised
November 1993, prOVIdes as follows.
TIlE MANAGEMENT OF AGGRESSIVE BEHAVIOUR: TRAINING
1.0 PURPOSE.
I I 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, nursmg and clinical staff shall be provided with on-gomg trammg in current
strategies of calming, diffusmg and non-verbal mterventions m the
prevention/management of aggressive behavlOr;
2.2 All other staff shall be given the opportunity to receive appropriate traimng 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-dlsciphnary heanng on October 3, 1994 and subsequently made the deciSIOn
to dismISS the gnevor In makIng that decision, Mr EskedJian testIfied that he rehed 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 inJunes 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 inappropnate" In Mr EskedJian's words, the gnevor "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 appropnate
restraInt mechamsm and that he was not famihar WIth all aspects of the management of
aggressive behaVIOur
13
The parties' arguments can be briefly summarized. The employer main tams that the
gnevor 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
restramt and the fact that sIgmficant mJuries were sustained by the patient. Ms. Nikolich,
counsel for the employer, acknowledged that the gnevor's subsequent actIons m allegedly
shoving Charge Nurse Joy Ross played no part m 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 gnevor was "an
excellent employee m terms of nursing work" but lacked the ability to control hIS temper
Counsel further contended that there were no compellmg mltIgatmg factors to JUStIfy any
form of substItuted penalty In support of ItS posItion, the employer referred to the
followmg authontIes. Re Ontario Cancer Institute/Princess Margaret Hospital and Ontario
Nurses' Association (Priestlev) (1993), 35 L.A.C. (4th) 129 (Barrett), Re Baptist Housing
Society (Grandview Towers) and Hospital Emplovees' Union. Local 180, supra, (Greyell), Re
Simon Fraser Lodge Inc. (B.c. Pricare) and Hospital Employees' Union (1992), 27 L.A.C
(4th) 300 (McPhillIps), Re Kennedv Lodge Nursing Home and Service Emplovees International
Union. Local 204 (1991), 18 L.A.C (4th) 38 (DaVIS), Re Government of Province of Alberta
and Alberta Union of Provincial Emvlovees (1992), 29 L.A.C (4th) 353 (McFetndge), Re
Nonnandv Hospital Ltd. and Hospital Emvlovees' 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 (1991),21 LAC (4th)
390 (McPhillips), Erhard W. Koch and Hamilton Psychiatric Hospital, GSB 2/75 (Beatty),
Samuel Johnston and Ministry of Community and Social Services, GSB 7/78 (Adams), Phyllis
J. Nixon and Ministrv of Community and Social Services, GSB 254/79 (E B Jolliffe), and
Gaspar Aberilla and Ministry of Health, GSB 298/80 (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
mamtained that the headlock is a proper hold for use in restraining a patient. Mr Bevan
maintained that patIent II A II 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 trainmg
Mr Bevan contended that the gnevor's injuries were not serious and any wntten account
of these mjunes were taken by investigator Murray from the patIent's complaints, in the
absence of medIcal venfication He also contended that some of the injuries may have
occurred m seclusion The umon relied upon the following arbItral decisions OPSEU
(Ohrt) and Mmistrv of Health, GSB #0250/88 (Dlssanayake), Community Living Oakville and
Ontario Public Servlce Emp!ovees Union (Grievance of Schott) (unreported, March 1, 1994
(Samuels)), and OPSEU (Inkumsah) and Ministry of Correctional Services, 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. Ifl
were to accept patIent "A's" version of events, I must conclude that patient abuse was
established and that reinstatement would not be appropnate, 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 tenmnate 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 BntIsh ColumbIa Court of Appeal In Faryna v.
Chomv [1952] 2 D L.R. 354 where he states at pp 356-8
If a tnal Judge's findIng of credibihty is to depend solely on WhICh person he thinks made the better
appearance of sincenty 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. Opportumties for knowledge, powers of obselVatIOn, 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\- Bosanquet (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 tnal Judge, and yet the surrounding circumstances In the case may pOInt deciSIvely to the conclUSIOn
that he IS actually telhng the truth. I am not referring to the comparatively Infrequent cases in whIch a
WItness IS caught in a clumsy lIe.
The credibility of mterested WItnesses, partIcularly m cases of conflIct of evidence, cannot be gauged solely
by the test of whether the personal demeanour of the partIcular WItness carned conVIctIon of the truth.
The test must reasonably subject his story to an exammahon of ItS conSIstency WIth the probabilItIes that
16
".. surround the currently existmg 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
mformed person would readily recognize as reasonable m that place and m those conditions. Only thus
can a Court satIsfactorily appraise the testimony of quick-mmded, expenenced 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. Agam a WItness may testify what he smcerely
believes to be true, but he may be quite honestly mistaken. For a tnal 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 m accordance with
the preponderance of probabilities m 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 dIvme msight mto the hearts
and minds of the witnesses. And a Court of Appeal must be satisfied that the tnal 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 assessmg 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 mtent to leave the ward.
That eVIdence does not comcIde with the eVidence of other witnesses. Further, a sIgnificant
pIece of evidence was gIven by Rose Degraw, a registered practIcal nurse m her thutIeth
year of employment, who recorded m her nursmg 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 gnevor) tned to stop me from leavmg 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 gnevor was generally a credible WItness although I do not accept all
of hIS eVIdence. The gnevor'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 10 whIch he was bemg
attacked by a husky male patIent who was infuriated by the grievor's attempt to prevent him
from leavmg 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 corndor door before he attempted to restram patIent "A" On thIS pomt the eVIdence
IS unclear I accept the grievor's testimony that he attempted to lock the corndor 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 corndor door, although Mrs. Hamza testified that she did
not order the gnevor to do so. In retrospect, It may have been an error 10 Judgment that
the corndor door was not locked at the tIme Joy Ross made that suggestIon to Chns
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
18
strongly contended that the headlock was an Improper form of restramt. The eVIdence
before me falls far short of establishmg that fact. We do know that the headlock IS not
taught as a restramt mechamsm at the London PsychIatric Hospital. It IS, however, a
recognized form of restraint at PenetangUlshene Health Centre, a psychiatnc facilIty
operated by the same Mimstry Further, it IS not without significance that both London
PsychIatnc HospItal Staff Development Co-ordinator Kathleen WhIte and AssIstant
Supenntendent Varouj Eskedjian were uncertam as to whether a headlock was a proper
form of restraint in a hospital setting. In my view, the gnevor's use of a headlock does not
establish the allegatIon of excessive force.
I am satIsfied that the grievor attempted to restram patient "A" for a penod of tIme,
m all probabilIty between one and two mmutes. The manner of restrammg patIent "A" was
primarily by use of a headlock dunng WhICh time the patient was still strugglmg while bent
over with the gnevor on top I accept the grievor's eVIdence that he mamtained that hold
until he was no longer able to do so. RegIstered Nurse Theresa Abdey was satIsfied that
the gnevor had used exceSSIve force and testIfied that the grievor's words were muffled
dUrIng the struggle and that the gnevor saId that he was chokmg. Charge Nurse Joy Ross
also heard the gnevor say that he was chokmg. Agamst 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 chokmg. Theresa Abdey described the patIent's
facIal colour as blue followmg the release of the restramt mechanism. In my VIew, that IS
not surpnsmg gIVen that the patIent was m a bent over posItIOn, was strugglIng, and was
19
shoutIng loudly for some one to two minutes.
Further, the employer cntIcized 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 expenenced 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 gnevor 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 cntIcIzed for failure to offer the gnevor 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 cnSIS InterventIon InstructIon at thIS hospItal
leaves much to be desIred. The stated objectIve of annual refresher traimng (ExhibIt 19)
20
sImply does not take place. The training appears to be sporadIc at best. Accordmg to the
eVIdence, the gnevor last receIved traming in the management of aggressIve behaviour some
three and a half years pnor to this incIdent. I accept the gnevor'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 restram patients. The evidence of most hospItal staff who testIfied, was to the
effect that the mandatory refresher training m the management of aggressIve behaVIour was
more honoured m the breach than the observance.
True, the patIent did sustain mJuries in thIS altercation. On the eVIdence before me,
patIent "A's" injuries may be properly charactenzed as superficial. In fact, the injuries were
so mconsequentIal that Dr Hamilton, the attendmg resident phYSICIan on the night of
September 20, 1994, was apparently unable to recall the inJunes and did not testIfy
Nevertheless, the eVIdence dId establish that the patIent sustamed a mmor nose bleed and
several wItnesses identIfied a small amount of blood under the patient's left eye. I find that
these inJunes were sustamed in the general scuffle dunng the first restraint. It IS less clear,
however, whether he bruIsed hIS nght arm and mJured his right shoulder in the origmal
restramt or dunng the three subsequent restramts. In any event, I am satIsfied that the
gnevor had no intent to harm patient "A" In my VIew, unmtended minor mJunes sustamed
m these partIcular cIrcumstances do not constItute patIent abuse. In summary, I find that
the gnevor dId not use excessIve force in the restramt of patient "A" and accordmgly there
was no Just cause for the Imposition of any form of dlsclplme
21
A few observatIons may be useful to address a number of procedural concerns.
NIght Nursmg Co-ordmator Nora Christensen suspended the grievor on the evenIng of
September 20, 1994 When asked by the gnevor why he was bemg suspended, Mrs.
Christensen refused to gIve a reason, saymg 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 mvestIgation of the mCldent IS also a matter of concern. Pam Murray,
acting dIrector of rehabilItation servIces at London PsychiatrIc HospItal, conducted an
mvestIgatIOn at the request of HospItal Administrator Mercer for the purpose of makmg a
recommendatIon as to whether or not a dIsciplInary hearing should be held. Unfortunately,
Ms. Murray had no formal trammg m investIgatIon procedures. Astoundmgly, she dId not
mtervlew the grievor to obtam his SIde of the story pnor to makmg a recommendatIon to
the hospItal. She appears to have recorded m wntmg only those portIOns of the vanous
wItness accounts m WhIch there was a consensus. In particular, she made no determinatIon
as to how the incIdent started or what form of restramt was used. In my VIew, it should
have been ObVIOUS to AssIstant Superintendent Eskedjian that the mvestIgation was so
superficIal as to be suspect and of lImIted assIstance At the request of local UnIon
22
presIdent Kathleen Bodme, the gnevor was allowed to submIt a wntten statement following
the pre-dIscIplmary heanng The fact remams, however, that the grievor's statement was
not obtained m a tImely fashion. In the decIsIon to dIsmISS the grievor, Mr EskedJIan
appears to have relIed m large measure upon the results of the Murray investIgatIon.
What IS the appropnate remedy? There is no eVIdence before me that the gnevor
would not have been reappomted to the publIc servIce had he not been dIsciplined. On the
basis of the final award m Miller and MacPhail this is the appropnate case to reinstate the
grievor for the remainder of his last term contract and to award compensatIon for the
penod from the dismissal to the effective date of his reinstatement, together with mterest
based on the usual formula set out m Re Hollowell House, (1980) 0 L.R.B Rep Jan. 25
I retain JUrIsdiction In the event of any difficulty encountered m the implementation of thIS
decIsIon.
DATED at Brantford, Ontario, thIS 30th day of September, 1996.
~-~~
R. L. VERITY, Q c. - VICE-CHAIRPERSON