HomeMy WebLinkAboutSavage 09-12-14
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IN THE MATTER OF AN ARBITRATION
BETWEEN
PROVIDENCE CARE
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
GRIEVANCE OF TOM SA V AGE
Arbitrator:
Richard Brown
For the Union:
David Wright
Ron Pearson
For the Employer:
Hearing:
Apr. 20, June 23, Sept. 15, 18 and 22, Oct. 9 and
Nov. 22 and 27,2009
Kingston, Ontario
Tom Savage, a registered practical nurse working on a geriatric ward at
Providence Care, was discharged as a result of an incident during which he
held a patient's arm behind her back.
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When the incident occurred on December 7, 2008, Mr. Savage had been
employed by Providence Care and its predecessor for twenty-nine years and
had worked on geriatric wards for all but a few. He had not received any
prior discipline.
Geriatric patients at Providence Care are there because they have
impairments too great be accommodated at any other long-term care facility
in the area. The patient in question is a 93 year old female who weighs about
120 pounds and is totally dependent upon employees for her activities of
daily living. As a result of dementia, she has a well-documented tendency to
become aggressive when receiving care, trying to bite, hit and kick members
of the nursing staff and sometimes succeeding. She had reacted aggressively
when care was provided on many occasions. Some sense of the degree of her
aggressive tendencies, relative to other patients, can be gleaned from the fact
that she was one of those for whom a team of four staff members typically
participated in a diaper change, whereas a team of three would perform this
procedure for others. The patient had been "optimally managed" in the sense
that she was receiving all appropriate treatment but she continued to be
aggreSSIve.
The incident leading to the grievor's termination occurred while the
patient's diaper was being changed by a team comprised of him, Ann
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Mackenzie, Sue Daines and Melissa Boivin. The grievor testified about this
occurrence as did Ms. Mackenzie and Ms. Daines both of whom are
registered nurses.
Much of what happened is not disputed. The patient was in a chair
when approached by staff. Some of them spoke to her in an attempt to
reassure her and explain what they were about to do. Ms. Daines and the
grievor lifted the patient to her feet and supported her, each of them placing
a forearm under one of her shoulders. Ms. Daines was facing the patient on
her left and the grievor was doing the same on the right. Ms. Boivin and Ms.
Mackenzie then changed the diaper, the former working in front of the
patient and the latter behind. While the patient was standing, the grievor put
her arm behind her back. Before this hold was used, the patient had taken a
swing at Ms. Daines and had hit the grievor in the stomach. It is not entirely
clear whether he was hit while the patient was still seated or after she was
standing. The patient continued to resist at least until her arm was put behind
her back. The use of this hold prompted Ms. McKenzie to say something
like we don't do that here. The grievor replied with words to the effect that
he did when hit in the stomach. (Both Ms. Mackenzie and Ms. Daines
attributed this comment to him and he did not deny making it.) The grievor
held the patient's arm behind her back for 5 or 10 seconds and released this
hold soon after Ms. McKenzie spoke to him.
According to Ms. Daines, as the grievor commented on being hit in
the stomach, he twisted the patient's wrist. The grievor denies doing so and
Ms. Mackenzie did not observe any such twist. Ms. Daines readily conceded
that Ms. McKenzie had a better view from her position behind the patient.
Bearing this concession in mind, I am not satisfied on the balance or
probabilities that the wrist was twisted.
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Ms. Mackenzie and Ms. Daines testified the grievor held the patient's
arm behind her back so as to tilt the lower part of the arm significantly above
horizontal. The grievor initially denied doing so, saying that he held the
lower arm just below horizontal. In cross-examination, he suggested that
struggling by the patient could have caused the lower arm to move up. From
her position behind the patient, Ms. McKenzie had a better view than the
grievor. I accept her evidence that the lower arm was significantly above
horizontal. I think it more likely than not that this positioning of the arm was
caused primarily by upward pressure exerted by the grievor, regardless of
whether the patient was moving around.
I also conclude the hold used by the grievor was likely to cause pain,
particularly for this patient who has osteo-arthritis. (The grievor admitted in
cross-examination that pain might result in these circumstances.) According
to Ms. Daines, the patient shook her hand and said it hurt. Ms. Daines was
not certain when this occurred, but she suggested that it may have been
when she and Ms. Boivin were settling the patient in her chair, by which
time the grievor and Ms. Mackenzie may have moved away. The grievor
testified he did not see or hear the patient indicating her arm hurt, but he
conceded it was possible that Ms. Daines 'stayed behind" after he had
moved on. When interviewed shortly after the incident, Ms. McKenzie was
asked whether there was any indication of pain and she replied only that she
could not see the patient's face. In my view, it is very significant that the
hold was likely to cause pain and less significant whether it actually did on
this occasion.
The patient did not suffer any lasting harm. Ms. Mackenzie assessed
her condition later the same day and determined that her use of the arm and
range of motion were normal. A subsequent examination by a doctor
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confirmed that there was no lasting injury. While no physical injury
occUlTed, I am satisfied there was a potential for such harm. Murray Hillier
is a registered nurse and has co-coordinated clinical education for
Providence Care since 2004. Mr. Hillier testified putting an arm behind the
back is not one of the holds taught because it can cause injury. He also stated
that using pain to induce compliance undermines the therapeutic relationship
between nurse and patient.
Based on the grievor's comment, the employer contends he put the
patient's arm behind her back as punishment for hitting him. The grievor
denies this motive and contends he acted to protect himself and other staff as
well as the patient. He testified that, after being struck by the patient, he held
her arm but she broke free and swung at someone else. He put her arm
behind her back to prevent her from striking again. According to him, this
hold posed less risk of tearing her skin than would have resulted from
holding her arm tightly at her side.
The evidence indicates the patient did pose a risk to the employees
changing her, even if that risk was more likely to result in short-lived pain
than in a longer-lasting injury. The grievor characterized the blow he took
from the patient as "hard" but he conceded it had not "hurt" him. Having
been struck by this patient on other occasions, Ms. Mackenzie testified the
93 year old was able to deliver a "good punch" that would be "felt" but was
not "dangerous". Ms. Daines' testimony was to much the same effect. The
grievor described Ms. Boivin as vulnerable to being kicked when removing
the patient's diaper from the front and Ms. Mackenzie agreed with this
description. Immobilizing the patient's arm would have prevented her from
using it to strike out again but would have been much less effective in
protecting Ms. Boivin from a kick. Moreover, there were other ways to
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immobilize the arm. In cross-examination, the grievor was asked if he could
have controlled the patient by holding her arm at her side with both of his
hands while continuing to support her with his forearm under her shoulder.
He conceded "in hind sight" that this would have been a better way to
maintain control.
What actually motivated the grievor? People often act with mixed
motives. Part of his motive may have been to protect himself and others-a
legitimate objective in the circumstances. Nonetheless, his comment about
being punched in the stomach, coupled with his refusal to admit making the
comment, lead me to conclude that there was an element of what might best
be described as spontaneous retaliation. I come to this conclusion despite the
comment itself being somewhat ambiguous as to motive. The mention of the
past punch could be interpreted literally as a sign of retaliation, as the
employer suggests, or it could be interpreted as a veiled reference to the risk
of a future strike. I am not inclined to resolve this ambiguity in the grievor's
favour because he has not admitted making the comment. When he was
interviewed in December of 2008, he was told that he had been accused not
only of the arm hold but also of making the comment about being punched
in the stomach. He was also asked whether there was any "intervention"
from other staff. He answered that "someone said we should not be doing
that." When asked how he responded to this remark, he replied that it was
"necessary to have control" so that the client and staff did not get hurt. The
important point is that the grievor did not admit saying anything about being
punched in the stomach. At the hearing the grievor testified that he could not
recall making this comment. In my view, it is not credible that the grievor
could have forgotten his own comment, especially when first interviewed. In
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my view, his unwillingness to admit that remark tips the balance in favour of
the employer's literal interpretation of it.
I have concluded there was an element of retaliation in what the
grievor did, but it should not be overlooked that his conduct was both
spontaneous and a response to being hit in the stomach with some force.
The employer reported the incident to the College of Nurses and to the
police. The police did not question the grievor and laid no charges. He was
interviewed by representatives of the college who decided not to conduct a
full investigation and took no disciplinary action. The union invited me to
treat the response of the police and college as evidence that the grievor did
nothing wrong or at least nothing seriously wrong. I decline this invitation.
My mandate as an arbitrator is to decide the matter based on the evidence
presented at the hearing. Not knowing what might have led other bodies to
act as they did, I should not follow their lead.
For the same reason, I am not swayed by evidence about what Ms.
MacKenzie did after the incident. She reported it after a conversation with a
friend who said she would file a report if Ms. MacKenzie did not. When
interviewed by the employer, she said that she felt the problem was
"systemic" and that she would not have come forward if she had thought one
person would be held "responsible." I repeat that my mandate is to decide
the matter based on the evidence presented, not to defer to someone' s
opinion for which the basis is uncertain.
The union also contends the employer bears some blame for what
occurred because the grievor had not been properly trained. In particular, he
had not been offered a course on the Gentle Persuasive Approach to geriatric
care. The grievor conceded in cross-examination that he bears some
responsibility for his own professional education and that he made no effort
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to read the materials for this course. In my view, even without this training,
the grievor should have know that what he did was unacceptable.
When interviewed by the employer on December 10, Ms. Mackenzie
said the team had a "collegial responsibility" for the incident because the
patient consistently responded to care with aggression and they failed to
modify their approach. She did not suggest what they should done
differently. I note one or two members of the team did speak to the patient in
an effort to reassure her and explain what they were about to do. Even if the
team should have modified its approach as Ms. MacKenzie suggested, this
does not lessen the grievor's responsibility for what he did.
II
Both parties cited the decision in Royal Ottawa Health Care Group and
Canadian Union of Public Employees (2005),139 L.A.C. (4th) 353 (Swan).
The employer provided copies of two additional decisions. Grace General
Hospital and Manitoba Nurses Union, [1998] M.G.A.C. No. 30 (Freedman);
St Joseph's Health Care Centre and London & District Service Workers'
Union, [2000] O.L.A.A. No. 103 (Kirkwood). The union also referred me to
Riverside Health Care Facilities and Canadian Union of Public Employees,
unreported decision dated June 8, 2009 (Surdykowski)
The grievor in Grace General, a male nurse age 50 who worked in a
psychiatric unit, was discharged for an incident involving a 66 year-old
female patient whose psychiatric disorder rendered her "sexually
uninhibited." He accepted her offer of a kiss, bent down to kiss her on the
cheek and ended up kissing her on the lips because she turned her head. He
also allowed her to put his hand on her breast but pulled away immediately.
The grievor lied about his conduct when first confronted but confessed soon
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after and conceded he had acted improperly. Mr. Freedman concluded both
the kiss on the mouth and the hand on the breast were both "initiated" by the
patient (para. 107). He then characterized the grievor's intended kiss on the
cheek as "quite wrong" but not "sexual contact" (para. 108). Arbitrator
Freedman wrote:
It will be helpful to confirm, as the cases do, as was acknowledged by
the parties, and as is the view of the members of this Board, that
standards imposed on employees in the health care industry in dealing
with patients are very high. One typical statement of the view taken
by arbitrators is found in Re Baptist Housing Society (Grandview
Towers) and Hospital Employees Union Local 180 6 L.A.C. (3d) 430
where at 437 the arbitration board said:
A much higher standard of conduct is expected from employees
in the health care field than in other occupational fields. In this
industry arbitrators are required to have regard not only to the
interests of the grievor and of the employer but also must have
regard to the public interest. Both employer and employee are
reposed with the public trust for which they are held
accountable.
The public trust is onerous. In broad terms it is a charge
of responsibility for the physical and emotional comfort of a
member of our society who is unable to live
independently. The institution and no less its employees, in
addition to regular duties assume a role which may best be
described as similar to that of a 'surrogate' family. This is
particularly so in facility such as Grandview which strives to be
a 'home' for elderly residents. Because of the public trust
reposed in him, when an employee enters the health care field
he must do so with considerable ability to understand human
frailty and with a gargantuan tolerance of aberrant and
unpredictable behaviour that often attends the infirm or
elderly. "
While in the health care field standards are very high, the authorities
are also reasonably consistent that patient abuse (where it is
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established) does not automatically result in discharge of the
employee. (para. 102 and 103)
As to the factors bearing upon the determination of the appropriate
penalty in a particular case, Mr. Freedman stated:
Several authorities were submitted to us in this regard but we need
refer only to William Scott and Company Limited and Canadian Food
and Allied Workers Union Local P-162 Decision No. 46/76. In that
case among the factors which the tribunal thought relevant in
evaluating whether the employer's response was excessive were the
seriousness of the offence which precipitated the discharge, whether
the conduct was premeditated or repetitive or whether it was a
momentary and emotional aberration, whether the employee had a
record of long service in which he was an able worker and enjoyed a
relatively free disciplinary history, whether there had been earlier and
more moderate forms of corrective discipline imposed which did not
prove successful and whether the discharge was in accord with a
consistent policy of the employer. (para 116)
The grievor was reinstated, because he had 18 years of service without prior
discipline and because his conduct had not been "premeditated, planned or
deliberate" (para 117 and 118). The arbitrator declined to award any
compensation for income lost during the 15 months between discharge and
return to work.
In St. Joseph's Health Care Centre, Arbitrator Kirkwood also
acknowledged the "high standards" required in the health care industry but
noted "a finding of abuse does not automatically trigger discharge" (para
97). The grievor was a primary care partner, otherwise known as a health
care aide, in a long-term care facility. When a confused 90 year-old resident
indicated she did not want to be undressed and began to flail her arms
around, the grievor held her down and forcibly changed her. The resident
suffered no lasting injury. After the resident reported this encounter to
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others, the grievor was discharged. The grievor had completed fourteen
years of service and had no disciplinary record. Ms. Kirkwood wrote:
The nature of the abuse in this situation if looked at in isolation could
be characterized as an exercise of bad judgement. The grievor was
not motivated by any intent to harm, hurt or abuse the resident, but
rather was intent on preparing her for bed, having no regard to the
resident's wishes. ... [A]though the nature of the grievor's actions fell
within the criteria for abuse, and her actions were serious, it was not a
case of extreme abuse.
[H]er actions were more in the nature of poor judgement, and
when considering the grievor's long employment history, without any
discipline, these circumstances by themselves would not warrant
discharge. (para. 98 and 99)
In short, Arbitrator Kirkwood concluded the grievor's mistreatment of the
resident, viewed in isolation, did not warrant the dismissal of a long-service
employee with no disciplinary record. Nonetheless, Ms. Kirkwood declined
to reinstate the grievor because she had refused to admit that what she had
done was wrong, made excuses instead and gave false testimony on a
number of important points, including her training and whether the resident
had cursed and hit her before being held down (para. 101 and 109).
Arbitrator Kirkwood also noted that the grievor had repeatedly refused to
answer questions during cross-examination even when directed to do so.
(para. 26)
In Royal Ottawa Hospital, a male patient in a forensic psychiatric
ward was restrained by four employees after attacking another patient. The
aggressor was pushed onto his bed by a nurse who held him there with the
assistance of an orderly. The aggressive patient ceased resisting after a
matter of seconds and submitted to the administration of a pharmaceutical
injection. Ifhe had not submitted, it would have been necessary to restrain
him with straps. The patient's legs were hanging over the edge of the bed
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and would have needed to be moved onto it if he was to be strapped down.
The grievor, also an orderly, hit the patient's thighs three times, in an effort
to prod him to move his legs onto the bed. The union conceded discipline
was warranted but contended that terminating the grievor was excessive.
Arbitrator Swan succinctly summarized the relevant legal principles:
The principles in these cases may be summarized as a general
statement that patients are entitled to be treated with dignity and
respect, that the amount of force applied, when the application of
force is clearly justified, should be the minimal amount required to
achieve the permitted result, and that excessive force, abuse, violence
or mistreatment are all grounds for serious discipline, up to and
including discharge. While there is a certain amount of danger
inherent in the care of psychiatric patients, particularly psychiatric
patients whose aggression has led them to be involuntarily confined,
that risk is part and parcel of the health care employees' job, and
cannot by itself justify mistreatment of a patient. (para 21)
Turning to the facts before him, the arbitrator wrote:
[Ilt is essential to recall that the circumstances in which the force was
applied was a situation of some immediate urgency. It clearly was
necessary to separate the patient from the person he was attacking,
and to do so quickly and cleanly. If a repetition of the aggression was
to be prevented, it would be necessary to medicate the patient, with or
without his consent. ...
While it seems to be true, as the Employer stated in the
discharge letter, that the grievor's intervention only took place when
the patient had decided to submit it is only with considerable
hindsight that we can come to that conclusion. Mr. Armstrong and
Mr. Wood were still draped over the patient, his legs were still off the
bed, and he might have decided to renew the struggle at any moment.
On the basis of all of the evidence, I accept the grievor's
testimony that his intention was to prod the patient into moving his
legs up on the bed, as would be necessary if restraining straps were to
be applied. Whether such a means would have been effective is
doubtful ... I also accept that the means applied amounted to
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excessive force, and to an improper act not permitted by the
Employer's policies.
Moreover, while I recognize that the grievor was resentful at
the hearing, I do not accept that he would be likely to repeat such
conduct if reinstated. He recognized that he would have to find other
means of applying restraint when required, although he said that
avoiding the use of force altogether would be impossible in his job.
(para 23 to 27)
The grievor, who had been off the job for eight months, was reinstated
without compensation. Even though he had used excessive force in a manner
not likely to achieve his objective, the discharge was overturned because he
acted for a legitimate purpose and did so spontaneously in a volatile and
dangerous situation. The award makes no mention of his seniority or
disciplinary record. Arbitrator Swan concluded a repetition of the
misconduct was unlikely even though the grievor was 'resentful" about
being fired. I also note the grievor had described his contact with the patient
as "taps", not hits, but this understatement did not stand in the way of
reinstatement.
In Riverside Health Care, the grievor was a personal service worker in
a long-term care facility. She had about four years of seniority and no
disciplinary record. She was dismissed for verbally abusing one resident, for
causing minor injury to the mouth of a second, by inserting dentures when
the resident was not cooperating, and for failing to complete morning care
for a third. Reducing the penalty of discharge to a twenty-week suspension,
Arbitrator Surdykowski criticized the notion of reinstatement without
compensation:
The appropriate principled approach is to substitute the disciplinary
penalty that was just and reasonable in the first instance, not one that
depends on how long it takes the grievance to be heard and
determined by the arbitrator. (para. 161)
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Mr. Surdykowski also made the following general comments about patient
abuse:
Employees in the health care sector are held to a high standard of
conduct, which reflects the high level of both public and personal trust
and responsibility.
However these same people may be prone to unpredictable
aberrant or aggressive behaviour that no one would be expected to
tolerate in normal day-to-day life. ... To the extent that some of the
decided cases suggest that a spontaneous reflexive reaction to
physical aggression by a patient or resident constitutes abuse that
necessarily justifies significant discipline up to and including
discharge, I respectfully disagree. Perfection cannot be the standard
to which employees are held. The employees have rights too, which
rights are just as important as the rights of the people they are
employed to care for. (para. 146 and 147; emphasis added)
III
How do the principles set out in these cases apply to the facts at hand? The
grievor held a patient's arm behind her back in a position likely to cause
pain and posing some risk of injury. He may have done so in part to prevent
her from striking out again but there was also an element of retaliation in
what he did. The retaliation was a spontaneous response to being punched in
the stomach.
I have no hesitation in saying this conduct warrants discipline. The
grievor used a hold likely to be painful and carrying some potential for more
lasting harm. He did so partly as a reprisal for being struck. This
mistreatment of an elderly and frail patient with dementia, who had been
entrusted to the grievor's care, is serious misconduct.
Does this behaviour warrant dismissal when other relevant
considerations are taken into account? There are three mitigating factors that
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weigh in the grievor's favour: (1) his twenty-nine years of service; (2) his
spotless disciplinary record; and (3) the fact that his conduct was a
spontaneous reaction to being punched and was not premeditated. In the
absence of these factors, discharge might have been warranted. In
combination, they significantly alter the balance of interests. The importance
of these factors is acknowledged in the cases reviewed above.
Another relevant factor is whether the grievor now recognizes that his
conduct was improper and must not be repeated. During examination-in-
chief, he said that he was sorry if the patient had experienced pain. Asked
what he would do the next time a similar situation arose, he said that he
would be more reassuring to a patient and, if that failed, he would suggest to
other staff that the provision of care be delayed. He attributed this new
approach to the workbook and DVD about patient abuse provided by the
College of Nurses which he had not seen before. The union cites these
answers as evidence that the grievor has mended his ways. The employer
disagrees, noting he initially described his hold as "placing" the client's arm
behind her back and only in cross-examination admitted some force was
required to move the arm. Asked in cross-examination what had led him to
conclude his conduct had been inappropriate, he replied "after what I have
been through obviously it is." Based on this comment, the employer urged
me to conclude the grievor is concerned only about his own welfare and has
not reformed. I take this comment to indicate he is resentful over being
discharged. Bearing in mind all of the grievor's testimony, I conclude he has
learned a lesson, perhaps in part because of the shock of being fired, and is
unlikely to engage in similar misconduct again.
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This analysis leads me to conclude that discharge was an excessive
penalty. The grievor is reinstated without loss of seniority but without
compensation.
Richard M. Brown
Ottawa, Ontario
December 14, 2009
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