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HomeMy WebLinkAbout1986-1759.Serrao.88-08-31EMPLOY&OELA COURONNE CROWNEMPLOYEES DE L’ONTARIO COMMISSION DE RkGLEMENT DES GRIEFS Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVEzBARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (A. Serraol Grievor and The Crown in Right of Ontario (Ministry of Health) M.G. Picher Vice-Chairman I. Freedman Member I. Cowan Member For the Grievor: R. Wells .Counsel Gowling and Henderson Barristers and Solicitors For the Employer: M.V. Quick Counsel Legal Services Branch Ministry of Healthh Hearings: October 30, 1987 November 27, 1987 Employer DXX I s I 0 N This is a grievance against discharge. By notice given on December 24, 1986 the grievor, Mr. Anthony Serrao, was dismissed from his position as a registered nursing assistant with the Hamilton Psychiatric Hospital effective December 31, 1986. Following an investigation,the administrator of the Hospital, Mr. D. Wayne Fyffe concluded that on December 18, 1986 the grievor threatened and abused a patient verbally and placed her in seclusion contrary to authorized practice. The Union submits that the Employer did not have just cause to discharge the grievor. A preliminary issue arose with respect to the application of the doctrine of culminating incident. The Employer sought to rely on prior incidents in the grievor’s disciplinary record as further justification of the discharge of Mr. Serrao for the events of December 18, 1986. Because of the position taken by the Employer in both the letter of discharge of December 24, 1986 and in subsequent steps of the grievance procedure the Union asserted that the Employer did not invoke the grievor’s past record in making its decision and could not, in these proceedings, expand the case against Mr. Serrao onto that broader footing. Upon a review of all of the evidence and material pertinent to the preliminary issue, in an interim decision dated September 14, 1987, this Board sustained the position of the Union. That decision included the following conclusions: . . . The grievance shall proceed on a consideration of the merits of the. discipline assessed against the Grievor in Jight of the final incident which gave rise to his dismissal as related in the letter of Mr. Fyffe dated December 24, 1986. -2- The sole issue in this hearing, therefore, is what measure of discipline, if any, is appropriate having regard to the facts of the incident of December 18, 1986 concerning the grievor’s treatment of a patient. The’ grievor completed his training as a registered nursing assistant at the Regional RNA School in Thunder Bay in 1981. He has been employed by the Hamilton Psychiatric Hospital for some three years. On December 18, 1986 he was working the day shift, assigned to the Halton-Wentworth unit of the Hospital located in G-Wing on the second floor. At that time, among the patients on the floor was patient “C”, a young woman in her early twenties described as being slight of build, five feet tall and weighing not much more than 100 Ibs. The evidence establishes that C was a very withdrawn and frightened patient. It is not disputed that she spent a substantial amount of her time standing in hallway at or near the nursing station located in the centre of the G-Wing’s second floor. The first part of the incident which became the subject of discipline concerns the allegation that the grievor placed patient C in seclusion. The evidence establishes that G-2 Wing contains several seclusion rooms. These are described as unfurnished rooms into which a patient may be placed for the purposes of seclusion, either when the patient requests to be secluded in a quiet and reflective place, or when a staff me&r determines that seclusion is necessary because his or her behaviour risks danger to the patient’s welfare or to the welfare of other patients. The door to the seclusion room has no knob or handle on the inside and it may be left closed or open, depending on the circumstances. The door of the seclusion room has a bubble window to permit observation of the person within. r---- -3- A nursing policy document of the Hospital, tendered in’evidence, includes the following description of the purposes and practices surrounding the use of seclusion: NURSING MANAGEMENT OF A PATIENT IN SECLUSION secIusion The isolation of a patient in a single room, especially prepared and locked or left open. 1. To prevent a combative, disturbed or excited patient from injuring himself or others. 2. To prevent ward or personal property damage. 3. To provide a period of therapeutic quiet for those patients in which reduction of environment stimuli is essential. 4. To provide an opportunity for diagnosis through separation and control. NOTE: The form of seclusion discussed for the purposes of this Procedure is that indicated for highly disturbed patients. It is not to be confused with the use of a quiet room specifically ordered for a patient on a behaviour modification program or that designed for confinement. (Refer to H.P.H. Policy Manual, pg. C(R)-11-l & C(R)-13-l. 1. POLICIES RELATED TO THE USE OF SECLUSION IN THE NURSING MANAGEMENT OF A PATIENT Reference: H.P.H. Policy Manual, pg. C(R)-9-1,2,3 1. Only the Ward Supervisor or delegate may authorize the use of seclusion. . . . NOTE: Unlocking the seclusion room door with the patient remaining in the room does not necessarily terminate the need for direct observation. -4- Seclusion is terminated only when approval is given for the patient to leave the seclusion room without the intention of returning. 8. The use of seclusion must be recorded and written notes of the patient under observation in seclusion must be made at 15 minute intervals. Refer to Section II, Items 4 & 12. 9. A review of the patient in seclusion is mandatory for the staff directly involved in the patient’s management. The treatment program and methods of management must be considered as part of the review. IO. The use of seclusion in the management of acutely suicidal patients is considered dangerous and is contraindicated. IL NURSING MANAGEMENT OF A PATfENT IN SECLUSION General Instructions 1. 2. 3. 4. 5. The seclusion room must be stripped of all furnishings except for a mattress, preferrably (sic) covered with a strong rubber or plastic protector and a blanket if necessary. The specific nursing care of the patient in seclusion and the provisions of seclusion, itself, must be planned by the Ward Supervisor or delegate in consultation with the attending physician. AR instructions must be rmde Imown to nursing staff directly involved in the patient’s care. These instructions must be recorded on the Patient/Nursing Care Plan (1134-42). Specific nursing staff must be assigned to be responsible for the care of the patient in seclusion. Two or more nursing staff members are required for each entry into a locked seclusion room. Staff are to request that the patient sit or lie down on the mattress prior to each entry into and departure from the Seclusion Room, even if compliance to the request does not always occur. The purpose of seclusion must be stated to the patient. ‘In addition, the patient must be told the purpose of each entry and be made aware that he is to be checked at regular intervals. 6. The patient who is secluded is not permitted visitors in the seclusion room. Family members wishing to visit the patient must be told of the seclusion and the reason for its use, with emphasis on seclusion as a time-limited form of nursing management. 7. Smoking in seclusion is permitted upon the approval of the Ward Supervisor or delegate and at specific intervals when nursing staff are in attendance. 8. The Ward Supervisor, delegate or attending physician are responsible for deciding when the patient is to be permitted out of seclusion, either as a test or if indicated earlier than the time-limit specified. 9. An unlocked room usually used for seclusion may be used occasionally to provide for a particular patient, a period of quiet or privacy. The patient is free to come out and to reenter the room. The Ward Supervisor or delegate is responsible for approving its use and for ensuring the patient is checked at frequent intervals. A physician’s order is not necessary. The provisions of seclusion do not apply to this form of nursing management. [emphasis added] A number of witnesses testified with respect to the events of December 18, 1986. On a full review of the evidence the Board is satisfied that the following account reflects the events of that day. During the morning the grievor was working inside the nursing station. As he did so he noticed patient C standing near the entrance to the station. It appears that she often stood in that area because of the greater security which she felt in the presence of the nursing staff. Mr. Serrao asked her to leave the area several times, without success. The account of R.N.A. Colleen Hesson, which the Board accepts as accurate, relates that on several occasions the grievor led the patient away from the area of the nursing station, but she returned each time. On one occasion, in a loud and angry voice, the grievor instructed her to -6- leave the area or else she would not be able to do so. Finally, the grievor led patient C away, this time in the direction of the seclusion rooms. Shortly afterwards, at approximately 11:45 a.m., Ms. Hessdn observed patient C standing inside one of the seclusion rooms, looking out of the double window in the door. She relates that the patient was in a distressed condition and was crying. The grievor gave a different account of the above incident. He acknowledges that he was disturbed by patient C’s continuing presence near the nursing station, although he maintains that the reason for his concern was the risk that she might be the target of violence by another patient, described by the grievor as a male patient who had been returning frequently to the nursing station requesting medication, and who appeared to be growing more and more agitated as the day wore on. He explained that as he had seen violent behaviour in the male patient on a prior occasion, he became concerned for the safety of patient C. He states that after several fruitless attempts to escort her to other areas such as the television room and the reading room, he decided to take patient C to room 225, which he believed was her room. Upon discovering another patient occupying that room, the grievor states that he suggested to patient C that she go into the adjacent room, isolation room 224, and look out of the window for a while. According to his account he left her there with the door three quarters open, at a time which he describes as about mid-morning. He further states shortly afterwards she returned to the nursing station again and he simply gave up trying to do anything more about her. The Roard does not accept the foregoing explanation of the grievor’s actions. On the whole we prefer the evidence of Ms. Hesson, whose account of what she observed was related carefully, consistently and without vagueness or exaggeration. The -7- grievor’s evidence is that he left patient C in the seclusion room at mid-morning. Ms. Hesson’s testimony establishes that his attitude towards patient C was irritated and aggressive. Some considerable time after he .led her away, approximately fifteen minutes before the noon hour, Ms. Hesson observed patient C standing inside seclusion room 224, in an obviously distraught state, with the door closed. The preponderance of the evidence establishes to the Board’s satisfaction that patient C was placed in that location against her will. We are also compelled to prefer the evidence of Ms. Hesson that the door was closed. There is no testimony whatever to corroborate the grievor’s account’ that patient C left the seclusion room freely and returned once again to the nursing station. We conclude, on the balance of probabilities, that Mr. Serrao did place patient C in seclusion, under confinement, and against her will without the authorization of the ward supervisor and without notifying any attending physician as required by nursing policy. Even if the Board were to accept, which it does not, the grievor’s assertion that the door was left open, his actions would still have constituted a violation of paragraph 9 of the general instructions to the extent that there was no approval obtained from the ward supervisor nor, it would appear, any attempt to ensure that patient C was checked at frequent intervals. With respect to the issue of unauthorized seclusion, therefore, the Board finds that the allegation of the Employer is established. The second aspect ,of the case against the grievor concerns Mr. Serrao’s treatment of patient C in the cafeteria during the lunch period on the same day. The evidence establishes that shortly after noon Mr. Serrao brought patient C into the dining room on floor G-2. With his hands on both of her shoulders he ushered her to the servery counter. According to the account of Ms. Hesson, who was working in the cafeteria at the time, patient C again appeared frightened and tearful. When, -8- according to normal procedure, her name was called out patient C failed to take her tray. In an angry tone of voice the grievor told the patient to “stop acting like a zombie” and placed his hands over hers, forcing her to take the tray. The grievor then led patient C to a table as she continued to cry. There he remained standing over her, with his hand on her shoulder ordering her to eat in a loud and irritated voice. When she refused to eat, and continued to cry without saying anything, Mr. Serrao took a spoon in his own hand and forced food into her mouth, feeding her at what Ms. Hesson described as a rate which was faster than she could swallow. The grievor’s angry voice and rough demeanor could be heard and observed throughout the dining room. Another nursing assistant, then working with Ms. Hesson, left the servery area to summon the registered nurse who was the team leader for the shift, Shortly thereafter the team leader, Nurse Lisa Yanch, arrived and instructed Mr. Serrao to leave the room which he did. Ms. Hesson and the other nursing assistant, Ms. Bratdovitch, then related what they had observed to Ms. Yanch. An investigation ensued, leading to the discharge of Mr. Serrao for patient abuse on December 24, 1986. The grievor attempted to offer some explanation of his actions in the dining room. He relates that he was concerned because patient C, who had been under his care some weeks previous, had a problem with eating and had, according to his observations, been losing weight. He relates that he had once overheard a staff psychiatrist explaining to patient C’s family that they must not always give in to her, and that occasionally taking a forceful position would be helpful in dealing with her. He maintains that his actions in the dining room’ were not excessive, and were motivated by his own wish to ensure that she receive adequate nourishment. It does not appear disputed that patient C did have a problem with nutrition. However -9- unbeknownst to Mr. Serrao, arrangements had been made to leave snacks and finger foods at the nursing station to be offered to patient C during the course of the day. There is no evidence, however, that instructions were ever give~n to the grievor or to any other member of the nursing staff that would have justified the aggressive conduct and force feeding applied by Mr. Serrao on the date in question; The Board must accept the evidence of Ms. Hesson that the grievor was unnecessarily rough and verbally abusive to patient C during the course of the lunch hour, immediately following the period during which he had subjected her to forcible seclusion without authorization. Given the facts established we find that the Employer did have grounds to discipline the grievor for abusive conduct towards a patient. We accept the submission of counsel for the Employer that the evidence discloses three infractions on the grievor’s part: unauthorized use of seclusion, the use of physical force applied to patient C in the dining room and, thirdly, verbal abuse of the same patient, both at the nursing station and within the dining room. We also accept her observation that although the incident in question does not disclose gross physical abuse of a patient, it does raise serious questions ~of the standard of patient care exhibited by Mr. Serrao. We also share counsel’s concern about the degree of candor demonstrated by the grievor in his evidence before this Board. The Board has considerable difficulty with the submission of counsel for the grievor that if we conclude that the door of the seclusion room was in fact left open the charge of unauthorized seclusion is not made out. Firstly, as noted above, we accept the evidence of Ms. Hesson that the door was in fact closed. Secondly, however, even if it was not, the grievor failed to observe his obligation to obtain the approval of the ward supervisor for placing patient C in a seclusion room, even with - 10 - the door open. Nor are we persuaded by the argument advanced by the grievor’s counsel that his actions both at the nursing station and in the dining room are insome measure mitigated because he was not aware that the patient’s eating problems were being treated by making snacks available to her at the nursing station. On the whole we cannot accept his characterization of Mr. Serrao’s actions as mere errors of judgement and overzealousness. The Board is compelled to conclude that Mr. Serrao did engage in unprofessional conduct in his treatment of patient C on December 18, 1986, that his actions involved a degree of force that was excessive in the circumstances and that the Employer had cause to discipline the grievor. The only issue is whether discharge is the appropriate measure of disciplinary response. Section 19 of the Crown Employees’ Collective Bargaining Act, R.S.O. 1980, c.108 provides, in part, as follows: 19. (3) Where the Grievance Settlement Board determines that a disciplinary penalty or dismissal of an employee is excessive, it may substitute such other penalty for the discipline or dismissal as it considers just and reasonable in all the circumstances. (4) Where, in exercising its authority under subsection (3), the Grievance Settlement Board finds that an employee who works in a facility, .(a) has applied force to a resident in the facility, except the minimum force necessary for self- defence or the defence of another person or necessary to restrain the resident; or (b) has sexually molested a resident in the facility, the Grievance Settlement Board shall not provide for the employment of the employee in a position that - I1 - involves direct responsibility for or that provides an opportunity for contact with residents in a facility, but the Board may provide for the employment of the employee in another substantially equivalent position. (5) In subsection (4), (a) “facility” means, . . . (iv) a psychiatric facility under the Mental Health Act, (b) “resident” means a person who is an inmate, patient, pupil or resident. in or is detained or cared for in a facility. We are satisfied that the facts of the instant case fall within the purview of the foregoing provision of the Act. The evidence discloses an unacceptable application of force by the grievor to a patient in a psychiatric facility under the Mental Health Act In these proceedings no prior record adverse to the grievor is disclosed. Nor is this a case of gross physical abuse or violence which the grievor attempted to conceal. The grievor’s actions constituted more of an over-reaction to a single situation rather than concerted willful or reckless misconduct that would justify the termination of his employment. In the circumstances we deem this an appropriate case for the reinstatement of Mr. Serrao into alternate employment in a substantially equivalent position within the terms of section 19(4) of the Act. The Board therefore orders that the grievor be reinstated, forthwith, into the service of the Employer, without compensation or benefits and without loss of seniority, into a position that is substantially equivalent to his former position. We - 12 - remain seized of this matter in the event of any dispute respecting the interpretation or implementation of this decision. DATED at Toronto this 31 st day of August, 1988 I. FGeedman, Member f’- f(-; L ‘:L&L%,i:s ________________-_ e --------- --- I. Cowan, Member .