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HomeMy WebLinkAbout1987-2181.Norton.93-04-22EMPLOY&DELA CO”RONNE CROWNEMPLOYEES DE“ONT*R,O GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 2181/87 IN TEE NATTER OF AN ARBITRATION Under THE CROWN BRPLOYBES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Norton) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE S. Stewart J. Carruthers D. Daugharty vice-chairperson Member Member FOR TEE GRIEVOR J. Miko Grievance Officer Ontario Public Service Employees Union FOR THE RESPONDENT S. Patterson Counsel Legal Services Branch Management Board of Cabinet HEARING January 25, 1993 DECISION This decision relates to a grievance dated November 6, 1987 in which Dr. W.A. Norton claimed that his position at the Queen Street Mental Health Centre was improperly classified as Psychologist 1. Dr.. Norton has since retired from his position and the duties that he performed were dispersed among other persons. As noted in our interim decision of November 20, 1990, the parties were able to resolve the grievance to the extent that they agreed that Dr. Norton's position was improperly classified. That agreement is reflected on page 1 of the Board's November 20, 1990 decision which, at page 1, states as follows: In accordance with the agreement of the parties we hereby find that Dr. Norton has been improperly classified and direct the Employer to classify him in an existing, appropriate classification should one exist. In the event that such a classification does not exist a new classification is to be created. The parties were unable to reach agreement with respect to retroactivity and that was the subject of a decision of the Board dated~ August 29, 1991. The Board was reconvened because the parties were unable to agree to the language of the class standard for the position. With one exception, where the dispute between the parties related to whether Dr. Norton's duties should include a reference to "recommending" new or amended policy material on the warrant system or *@suggestingq' new or amended policy material, the essence of the dispute related to whether the duties of the position entailed performance of clinical duties of a i_ . 2 psychologist such that the skills and knowledge section of the class standard should refer to "registration as a Psychologist the Province of Ontario. The Employer opposed the Union's in position that the typical duties of the position ought to include a reference to "provide clinical opinions as necessary, to inform relevant clinical staff" and to "provide advice and guidance to clinical staff on request". The Employer would place the position in the Administrative Services Category in the AD-01 General Administration group while the Union would place the position in the Scientific and Professional Category in the SP-09 Psychology group. There was' an issue between the parties as to whether the Board,should engage in the process of determining the contents of the class standard. It was the position of the Employer that the Board should not do so. In support of this position Mr. Patterson relied on the decision of this Board in Anderson, 497185, (Roberts) in which it was concluded that this Board lacks jurisdiction to review the content of a class standard to decide whether it is properly drafted. This decision was quashed by the Divisional court, however Mr. Patterson noted that the matter is currently on appeal to the Ontario Court of Appeal and submitted that we ought to follow the Board's decision in Anderson. We are unable to accept Mr. Patterson's submission in this regard. The decision of the Divisional Court with respect to this matter reflects the current state of the law on-this issue and must be 3 applied. Accordingly, we reject Mr. PattersonIs submission that the content of the class standard is a matter beyond our jurisdiction. The Board's August 29, 1991 decision contains some details of Dr. Norton's history of employment. As noted in that decision, in November, 1979, Dr. Norton was appointed Senior Psychologist in the psychogeriatric department of Queen Street Mental Health Centre. At that time his primary duties involved the assessment 'of elderly patients. In 1984, Dr. Norton became involved in the Centre's responsibilities with respect to patients under Lieutenant Governor's warrants. Dr. Norton ., ,. assumed those duties on August 14, 1984 while continuing on with some duties in'the psychology department. In a memorandum dated August 14, 1984, Dr. S. Malcolmson, psychiatrist-in-chief and clinical director at the Centre, set out Dr. Norton's functions in connection with warrant patients noting, at p. 2 that: The knowledge necessary to carry out these responsibilities.includes a full awareness of the Lieutenant Governor's Board of Review and other requirements of, the Chairman's memorandum to the Administrator. You will also have the clinical experience and expertise to extract the appropriate material for the report to the Review Board. The Lieutenant Governor's Board of Review, as it was then known, conducts hearings to make or review dispositions of persons who have been found not criminally ~responsible by reason of mental disorder or unfit to stand trial. Dr. J. Dacre, a psychiatrist and chief of forensic services, who had been primarily involved . . . 4 with these patients, left his position around the first week of September. Dr. Norton assumed some responsibilities in connection with these patients that had formerly.been carried out by Dr. Dacre. There was a significant change and evolution in Dr. Norton's duties. With the exception of some duties such as committee work, Dr. Norton came to focus his activities primarily in relation to the work of patients under Lieutenant Governor's warrants. Dr. Norton's duties at the relevant period of. time are set out in considerable detail in a position specification dated December 10, 1987, which is attached hereto as Appendix A. At . that time, as previously indicated, Dr. Norton's position was .classified as Psychologist 1 in the scientific and Professional Services Category. The justification for that classification set out in the position specification includes the following: . ..functions in collaboration with members of treatment staff from a number of~disciplines; Interprets disabilities and special needs of LGW patients; Utilising clinical experience and knowledge coordinates Centre's involvement in Lieutenant Governor's Board of Review As the position description indicates, the position in issue relates to the obligations of the Centre with respect to custody and treatment of patients found unfit for trial or found not guilty of a criminal offence by reason of insanity. We will not reproduce the particulars of the position here as the position .I . 5 specification attached hereto is .very detailed, except to note that in addition to the role of collecting and annotating information in preparing for hearings for warrant patients, the class standard includes reference to duties such as "consulting with Centre clinical staff regarding appropriate placement of such patients"... "advising clinical staff of . . . return situations, in light of the patient's clinical status, of the possible need for further Centre services following court appearance"... "reviewing amending warrants received from the Board following hearings and providing advice and guidance to clinical staff on request"... l'monitoring the fitness to stand trial of certain warrant patients in consultation with ,attending Psychiatrist"... l'providing clinical services on occasion, to warrant patients at behest of Board or patient's counsel or patient's family members, when requested". Dr. Norton testified that he visited each unfit patient almost every day. At any one time there would be in the range of fifty-five patients. Dr. Norton stated that he reviewed the clinical record for each patient and recorded his comments in the consultant's section of the chart. Other psychologists may also have had responsiblities in connection with these patients. Patients were also assessed by psychiatrists. Dr. Norton estimated that he carried out psychological assessments of various kinds of approximately twenty of'these patients in a particular year. He testified that the manner and nature of 6 assessment would be governed by his clinical knowledge. .Dr. Norton testified that he would sometimes be asked to join a clinical team to deal with a particular problem a patient was experiencing. He would periodically arrange a meeting with a psychiatrist to suggest that a change in diagnosis was indicated. Dr. Norton provided weekly psychotherapy for one warrant patient over a period of a year and one-half. Dr. Norton stated that in preparing the administrator's report for an upcoming hearing he would utilize his clinical knowledge in editing the information in order that information relevant to the patient's clinical condition was included and expressed appropriately. ,, The 'Board was referred to the description of the Scientific and Professional Services Category and the Administrative Services Category. In his submissions Mr. Patterson emphasised the first paragraph of the Administrative Services Category preamble which states as foll~ows: This Category includes: -positions involving the provision of internal administrative support services for Ministry programmes requiring the examination, main- tenance and control of systems and procedures and the adherence to instructions and interpretations in such areas as records management and control, general office services; the application of governing acts and regulations and the provision of related advice and information; In her submissions, Ms. Miko referred to the first paragraph of the Scientific and Professional Services Category which states as follows: 7 This Category includes: -Occupational groups requiring the continuing exercise of a scientific or professional discipline normally acquired through university graduation or professional designation in which membership is controlled by recognized associations or licensing bodies, consisting of the following areas: -... positions involving the psychological diagnosis, assessment, treatment and rehabilitation of patients in psychiatric, correctional, educational and rehabilitation settings; While, as previously noted, we have rejected Mr. Patterson's submission that the Board.is without jurisdiction to determine the contents of a class standard, we agree that the Board ought to.be reluctant to entertain disputes which involve nuances of language. We are confident that the matter of whether Dr. NortonIs typical duties ought to include a reference to t8suggesting 'I changes or "recommending" changes would not have been before us but for the larger issue between the parties. We are not persuaded that the Employer's choice of language in this regard is inappropriate. We now turn to the significant issue between the parties. As Mr. Patterson pointed out, section 11 of the Psvcholosists Reqistration Act, R.S.O. 1990, c.404, exempts persons employed by the Government of Ontario from the requirement of holding a certificate of registration as a registered Psychologist. However, the Employer has chosen to provide for a series of positions that are specifically described as "carried out by 8 psychologists registered under the-Psvcholoaists Resistration Act" . Accordingly, the fact that the Employer is not required by statute to employs registered.psychologists does not advance the Employer's position. We agree with Mr. Pattersonrs submission that both the administrative and clinical duties carried out in the position of issue could have been carried out by another health care professional. Indeed, some of the duties that Dr. Norton performed were formerly carried out by a psychiatrist. However, this latter point holds true with respect to many positions,. There is some overlap among functions within the health care professions and there are many duties or parts of duties that can and often are assumed by a number of different health care professionals. A psychologist was, in fact, utilised by the Employer in this position. His specialized skills as a psychologist were also utilised. After a careful review of the evidence and the submissions of the representatives of the parties we are persuaded that the position in issue is one which, in the words of the relevant paragraph contained in the preamble to the Scientific and Professional Services Category, involves "the psychological diagnosis, assessment, treatment and rehabilitation of patients". There is clearly a strong administrative component to the duties of the position at hand. However, we are persuaded that a critical feature of the position entailed the exercise of a scientific or professional discipline, in this instance, psychology. Itis our conclusion that the position should be placed in the Scientific and Professional ‘A . 9 Services category rather than the Administrative Services category and we so order. As previously indicated, this was the essential dispute between the parties. The issues between the parties with respect to the wording of the class standard, with the exception of the matter noted above, flow from this dispute. We are confident that the drafting of the class standard can now be finally resolved between the parties and direct that they address this matter on an expedited basis. While the wording proposed by the Union would appear to be appropriate we do not find it necessary to impose this specific language at this point. However, we remain seized in the event the parties experience any difficulties in the implementation of this decision. Dated at Toronto this 22nd day of, April, 1993. nwm HEALTH nckyn ;“e: St:et Mental Health Centre ,.dc4la Dh*m MENTAL HEALTH OPERATIONS Loulion w).~.- 1001 Queen street west 69301 6um”iOI’, podtim wdl - ‘1 05-9770-01 I I I , P”rp~uofpmirion w,vdad~~vawanxm?l To assist and advise the Administrator and the Psychiatrist- n-Chief~and Clinical Director of the Hospital on the sdministrative.‘and legal aspects of the $dministration of Warrants of the Lt. Governor of Ontario governing the custody and treatmen #f patients of the Centre found to be unfit for trial or not guilty by reason of insanity. To tssjst the Centre staff in the execution of those orders. and in the mandatory periodic hearin, :onducted by the Lt. Governor’s Board of Revjew. DVL~ndn~mhll.I~lkmPlol*np”LldmO,horrlnd~”llndlua~~~Urrlplnlaudldvnl . . PREPARES FOR HEARINGS BY: a) annotating the consultant section of clinical records regarding clinical, legal and adminj- strative matters. to inform. relevant clinical staff. and ensure the maintenance of quality services (eg. annual medlcal, etc): b) maintaining own documentary files; c) compiling the hospital’s serial report to the Board with updated revisions. using and checking the word processing. and co-sjgning reports with Administrator; d) arranging. recording and contributing with Administrator and attending Psychiatrist to the Centre’s recommendations to the Board and adding them to the reports; e) notifying the Chief So&l Worker that the Social Assessment Report is due and appendjn to the hospital’s report; f) jndicating to Administrator;~ to Psychiatrist-in-Chief, or to other staff any additional consultations or investjgations required to assist the Centre’s reporting to the Board. 31DS IN THE FUNCTIONS OF THE SYSTEM BY: a) evaluating requests from other hospitals or detention centres for the transfer of patients to determjne .whjch ward they will be assigned to in conjunctjon with Admitting staff; b) obtaining clinical informatjon about such patients from records of the Centre and else- * where to assist Admitting staff and ward staff; c) consulting with Centre clinical staff regarding appropriate placement of such patients an’ maintaining reco.rd of allacattons; d) meeting with patients “pan admjssion. ensuring~ receipt of letters and warrant6 sent by the Board to them, and establishing if they have legal counsel: e) requesting legal representation per Patient Advocate when appropriate: f) advising Board and counsel about transfers and admi~sjons; cont’d over.. . In a psychiatric facility, fnctjonr in collaboration with members of treatment staff from 1 number of disciplines; Interprets d,isabjlitiea and spectal ~needs of LGW patients1 Utiliring clinical expertise rnd knowledge coordinates Centre’s involvement jn Lt. Goven~~~‘~ Board of Revier. . . . 3 9,. pan ‘ EO”lW..... a) meeting with attending clinlcal staff to s&vise of u@ming hearing. consulting psychiatrist - l ppintmentr, etc. ; h) executing smending wsrrsnii ordering patient’s return to Court by writing OF phoning the Court (court sdministratorlcrown attorneys). the transporting police, and ss necessary coordinating thhe arrangements with patient’s counsel, family and others1 fl advisine clinics, staff of such return situstions. in light of the pstient’s clinical status. of the possible need for further Centre services folloiing court rppcarance; j) w,riting letters to 0, t+phoning Courts to advlse of need for continuing treatment and providing copies of smending wsrrsnts ss required: k) where required sttending Court snd offering evidence from the attending Psychiatrist . regarding fitness to stand trisl or other assistance in the Court’s transactions with psrients; I) consulting with Couns on request, respecting wsrrsnt patients being returned to Toronto Courts from outlying hospitsls and requiring Centre services. 3. COORDINATING AND ASSISTING IN BOARD HEARINGS AT THE CENTRE OR AT OTHER HOSPITALS BY: (Board is chsired by s Justice of the Supreme Court or by other members of the judiciary acd includes s legal member. s lay member. two psychiatrists, and 1 Con- sultant in psychiatry) s) arranging and sssisting in the visits of Board members to examine clinical recordst b) arranging and sssistinp in the visits of psychiatric consultmts ta interview patients snd C) notifying clinical stsff of the Centre of ihese arrangements snd requesting Completion of COnsent forms; d) where required, srrsngtng and tnvelling with patients to attend fitness hearings CO*- ducted .t other hosPita1.l e) stt,ending and mcnitoring hearings: ’ f) cmrdinating the sttendancs st herrings of clinical staff, relatives, observers from Metfors, (Ministry of the Attorney Ccnerslj. etc.1 8) reading report summaries to pstients. when requested; h) obtaining sffidsvit mstsfisl to k entered ss exhibits in hearings, including consultsnts’ report ; i) responding to issues *stsed tn the course of hearings by the Board or patient’s CoUnsel concerning Centre’s reports j) assisting in the provision of office sccommodstton snd recording materisl for consultants2 k) compiling schedule of herrings snd notificstion of clinical staff: 1) examining files of the ftcview Bosrd in ccrtsin csses snd briefs Board on emergsncY issues; ;‘.’ :. II. part 3 cont’d..... m) arranging interpretation 8ervices on requests: n) providing copies of hospital report to the Board. and to patient’s Counsel. 4. LIAISES WITH THE BOARD BY: a) verifying Board records of warrant patients 01 Centre by reference t0 own lists. noting changes ir. patient deceased; b) reviewing am6nding warrants received from the Board following hearings and providing advice and guidance to clinical staff on request; c) perusing Board’s reports to Lt. Governor for own Information and to alert attending Psychiatrist: dl preparing letters for Administrator to Board concerning patients’ movements. changes .of circumstnnces and the termination of warrant6 following return to trial; e) carrying out warrant directions for the Administrator concerning notification to police regarding transfers and placement with consent procedures. and patient/staff nOtif+ cation: f) following up and reporting on the Centre’s warrant patients who are transferring to other medical facilities; 5. PROVIDES GENERAL CLINICAL AND ADMINISTRATION LIAlSON BY: a) preparing letters of inquiry to Board or Ministry Legal Branch, concerning matters and legal changes affecting warrant patients when requested: b) monitoring the fitness to stand trial of certain warrant patients in consultation with attending Psychiatrist; c) attending ward meetings to discuss legal/clinical issues as requested> d) suggesting new or amended policy material; e) maintaining own files of forensic m*terial, papers. legislative proposals; I) monitoring some emerging situations (eg. a patient’s current whereabouts are unknown): g) accompanying patient oulside Canada under special warrant authoriration under l x- ccptional circumstances. eg. patient attending mother’s funeral); h) modifying M.H.A. forms for Board purposes. ie. additions to Form 14 allowing access lo files by Board or lawyer: i) maintaining liaison with METFORS for material required in Centre’s reporting: j) dealing with inquiries from lawyers regarding the warrant system and Board hearings: k) assisting in procuring special medical consultation for patients under warrant; -. I) providing clinical services on occasion. to warrant patients at behest of Board or patients counsel or patient’s family members, when requested; 0) doing presentations to METFORS medical students regarding the warrant system when requested. #4. SKILLS AND KNOWLEDGE - cont’d..... in the light of legal and professional/ethical obligations. Ability to communicate, deal ap- propriately with disturbed and recovered patients. with lawyers. Centre clinical staff. patients’ families, probation officers, police, court olficials and relevant community ageNieS. ., ‘~’ ,.