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GRIEVANCE COMMISSION DE
SETTLEMENT Rf=GLEMENT '
BOARD DES GRIEFS
t80 DUNDAS STREET WEST,.SUITE 2100, TORONTO ON MSG IZ$ TELEPHONE/T~L~PHONE .'
" '~80. RUE DuNDAs OUEST, BUREAU 2100, ;TORONTO ~(ON) MSG 118 · '~ '~ FACStMILEtT~LL~COPIE: (4t6) 326-1396
SEP .1' 5.-1995" . ~ ..,'tN 'r~E t.g,,,'~'r~ O~ ~
J Under
.Dt,~,~;''' ~'~'' , .: . . .
APPEAL BOARD~.'...~ '~"~ao E~.OY.~ZS CO~nSC~ZV-.
BETWEEN
~ OPSEU (Union Grievance)
" '~ " : Grievo=
.... .;.. ,: &zt(~, · - ~'
~he-C~o~n ~n ~ight o~- 0~tario
(~in~stry' '6£ 'HeaZth)
" " '~' '~: ';:'' employer
BEFORE J. ~cCamus V~ce-Chairpe~son
~. J.. Car~utherS MemSer
G. Milley Member
FOR THE R. Anand
· Scott & Aylen
Barristers & Solicitors
'- FOR THE. ' K. Reyn9%ds ..--
EMPLOYER Counsel
Legal.Services Branch.
Minisf~y 'of Health
HEARING June. 25, 1990
November 2, 5, 1990
April 17,'25, 1991
May 28, 31, 1991
June 3, 1991
November 13, 15, 29, 1991
December 2, 1991
This Union grievance alleges a violation' of Article 18.1 of the Collective
Agreement with respect to policies adopted by the Employer concerning the
practices to be followed with respect to escorting patients on temporary leaves of
absence from the Oak Ridge Division of the Penetanguishene Mental Health
Centre, a psychiatric hospital facility operated by the Employer. Article I 8.1 of the
Collective Agreement provides as follows:
"The Employer shall continue to make reasonable
provisions for the safety and health of its employees
during the hours of their employment. It is agreed that
both the Employer and the Union shall co-operate to
the fullest extent possible in the prevention of accidents
and in the reasonable promotion of safety and health of
all employees."
The Oak Ridge Division is a maximum security Psychiatric hospital - the only one
of its kind in the province - which, at the time of the grievance, had a patient
population of approximately 120. The patient population, which will be described
in greater detail below, consists 'in the main of patients who have been committed
t.
or~ an involuntary basis ("involuntary" patients) under the Mental Health Act or
who have been admitted into the facility on the basis of a finding that, having been
charged with a crimihal offence, they were either (a) unfit to Stahd 'trial by reason
of mental illness or (b) not guilty by reason of insanity ("WLG" patients). A third
· ~: ~ ~ r~ ' . . !, ~ ~.' ~, . ~,i~ -.~ · -' .-~ ; . ~, ..~ . ;.
category of patients are admitted for assessment on'~ ·{van'ant of remand for a
". ..,. 'o+'' - ..... ': ," ,. ~ "',' *. ;.:;' ,,' ' :,,. ",1'.,.4:, . . ,
period of 30-60 days. There is a fourth category bi' "voluntary" patients who are
.7' ~.~ '., :~h':' .'.'~ ' L. .' ~ '.. ' ~
small in number (sometimes there are none) and not relevant to 'the resolution of
' "'~ "';'-" ' '~ " · ..', ... i"~.l! ~' ~:.~..'.'
the present dispute.
The present grievance concerns the s~cfirity arrangeme~its in place for
temporary outings of involuntary and WLG Patients for' medi~:'al and dental
appointments and other compassionate reasons. Briefly, the Position of the' Union
is that such patients, who ~il1 ge accompanied by two e~orts, o.ught to be subject
~..' . , "i .... ~ ' . ~'"', * , ':.. . ,' ~
to what it refers to as a "minimal restraint policy''. Such a b'oi'i'cy would require
--' :~ -' ~" -,- -/'i' , ' ' '
that such patients should be subject to the mechanical"restra{iitS ~f handcuffs and
waist belts. That is to ~ay~, it is'ti~e union position that such patients should have
mechanical restraints of at least this level applied to them. Additional restraints,
in the form of leg irons, might' be cgnsidered tO tie' appropriate in particular cases.
of this
· It is the Union's position that a minimal restraint'~olicy kind had been in
3
r
efl~ct for a long time (with the exception of the period ti'om July, 1987 to April
1989) either as a matter of practice or as a matter of explicit policy until its
replacement by the Employer with a new policy in October of 1989.
The approach favoured by the Employer is to make determinations of the
level of security arrangements for such temporary leaves on a case by case basis.
In the Ministry's view that this approach is more consistent with the philosophy of
imposing on individual patients only such restraints as are considered to be
necessary. This policy of the "least restrictive alternative" is a philosophy Which
is mandated by the Mental Health Act (in provisions to be further described below)
'i
and which, it is argued, represents sound therapeutic practice. Further, it is the
Ministry's position that a discretionary security policy had been successfully
implemented in 1987 and interrupted briefly, on an interim basis, from April of
1989 to October 1989, during which period the approach favoured by the Union
was adopted as an interim measure pending further consideration of the issue. The
Employer reverted to the 1987 policy in October, 1989.
The substance of the grievance, then, is .:that the Employer's adoption of a
least restrictive alternative policy in October of 1989 constituted a violation of the
Employer's obligation to "make reasonable provisions for the safety and health of
its employees during the hours of their employment". The Employer's position, on
": "' ' the othe? fi'~fid, is th'at, the security hrrangements pertaining to its' least restrictive
~ ' :" :'altemiiti~,e'polidy 'c0hsfitiites a' reasontible p/'e~ifititiori in 'ail of the~ c~rcumstances,
~ .. L '. '.' and th'al:ii'strikes hn approI3?ifite~balanCe am0Iigst'the various interests.at stake.
I ' .' ' ' ° · ."3!' ' .'~ ' ~
-- A considerabl(b6dy bf evidence was led'in thi'g proceeding~cbnceming both
" ' ~ '~"' the~chi'onologY"of ~,ents'thht: gave rise 'to-the dispute as WeI1 as 6kpert evidence
"' relating to the~c6mpdting m'eiii/s:of theMiffefent policy positions' favoured by the
· ' ': "idnion · and 'the'.~Employe~. 'It-Will:~be -u~eful. t6 provide a !Summary of that
""" chr0n'ol~/gy befor~ tm-hing tO the'latter t6pi6.
-The p'ar~i&~s appear to agree. tht/t ihe established practice prior to 1987 with
fe'spect to 'tempbrary le~ives' of absence .' of patients was that .they' would be
'acc0m~anied bY' t3qb escorts .and ~uld be'subjeCt to mechanical restraints at least
'" '"in' ~h~ form Of handcuffs ~d belts:' Alth~ugh the 1980 Security Manual suggests
"' th/~t such i"estraints are only t6 be used "wHen necessary" (Exhibit 13, Paragraph
C6), ~the degree of-security to ben'used on. temiSorai'Y leaves-was to be determined,
under that policy; by the'Ctiief-Attendant. 'The':Emi~loyer did' not challenge the
Union's evidence to the effect that the Chief Attendant's position was, in fact, that
no patient would leave Oak Ridge without at least handcuffs and a belt.
This policy was changed in 1987 in response, in part at least, to a report, the
Hucker Report, prepared by an independent study group of mental health
professionals and lawyers. The Hucker Repqrt, which contains something in the
order of 89 recommendations, recommended a number of structural changes to the
Oak Ridge operation and, according to the evidence of Dr. Russel Fleming, the
Psychiatrist-in-Chief at Oak Ridge, caused a '?air upheaval" at Oak Ridge in 1986.
The Hucker Report recommended a policy of graded levels of security. For present
purposes, it is important to note that in the res~ulting reforms, the position of Chief
Attendant was abolished in 1987 and under a new policy adopted with respect to
levels of restraint on temporary leaves, two.: important changes were introduced
(Exhibit 2). First, the responsibility for determining levels of restraint was assigned
to the Unit Director, (Oak Ridge being newly divided into four Units) who is to
consult with other members of the Unit team, primarily the supervisor on the
patient's ward. Further, the Unit Director was given the discretion to authorize, with
input from the staff, different levels of security; "Full (i.e.) waist belt, handcuffs
and leg irons - & two escort staff'; "Semi (i.e,) one set of handcuffs and waist belt
- two escort staff," or "No Restraints (i.e.) two escort staff". The new policy thus
permitted temporary leaves without any mechanical
.l
.restraints in appropriate cases. Further, the new policy provided that the escorting
staff would carry mechanical restraints with them in cases where they were not
being worn by the patient. The evidence of Kathleen Finney, the Associate
Administrator (or CEO) of the Oak Ridge Division suggested that if a consensus
was not reached at the Unit Director level,, the matter would go to the Clinical
Director and ultimately to herself. This appeal structure, however, is not recorded
in the formal documentation of the policy until the issuance of the April 1989
version, (Exhibit 3). This new discretionary or case by case l~olicy was in place
from July 1987 to April I989. In a number of cases, patients were allowed to
attend medical appointments, etc., outside the hospital without wearing handcuffs,
belts or leg-irons. Dr. Fleming, who served, at material, times, as the Clinical
Director to whom Unit Directors.reported and, eventualiy as'Psychiatrist-in-Chief,
estimated that this occurred in about ten percent of cases; Exhibits 33-37 suggest
that this is a satisfactory approximation for present purpofies. Two escorts were in
attendance on these occasions with the patient. No difficulties or incidents have
been reported with respect to these cases.
In April of 1989 the new policy was suspended in accordance with the
recommendations of a Joint Security Committee. The Joint Committee was
established in March of 1989 as a result of negotiations that flowed from what was
referred to in evidence as "labour action". The Joint Security Committee was
constituted with six Union representatives and six management representatives with
the objective of reviewing and making recommendations with respect to security
issues and policies. It was understood (Exhibit 6) that the Committee was advisory
in nature and that it reported to the Oak Ridge Management Committee. The
management representatives were characterized by Ms. Firmey as "middle
management personnel" who were not members of the senior management team.
After the first meeting of the Joint Committee, Ms. Finney was approached
by a management representative with a view to securing her agreement to an
interim policy of restoring a minimal restraint policy, pending the results of further
deliberations. The Joint Committee shortly thereafter made this recommendation
as one of 43 recommendations on various security issues. Although 39 of these
recommendations were ultimately adopted, it Was Ms. Finney's evidence that senior
management disagreed with 3 or 4 of them. The Committee recommendation
relating to minimal restraint was approved unanimously by the Committee
members. Ms. Firmey agreed to the Committee's proposal (Exhibit 15) on April 6,
1989, in her words, "in order to get things going". Although it was her evidence
stafO~. In the event of disagreement, "the Security Si~p~:rviso'r br Sl~ift SuperviSor
will ~mlke ifi'e"fina'l ":' '
decision" (Exhib~i i6) Further, thi Assistant Director of the
Psychiatric Hospitals Branch r~qtieste'd a legal Opinion concerning 'the legality'of
the minimal restraint policy from Di&na gchel'll Counsel in;'the Legal Services
, 3 ':'~, '. ' " · · " '
Branch in the Ministry of Health. The Schell opini0h '(Exhibit 8)' Was forwarded
on September 5th. The opinion' offered the view that a restraint must be imposed
on inv°idntary Patieh'ts durir~g ' ~'*'" ~ '
temporary leaves in aCcbrdance with the terms of the
Act and'more particufarly, that the follox~ing definifidn of'~he'term restrain from
S~cti0n l(i) of the'Mental Health A~ti"R.s.~). 'I980 ~hi' 26~ ii applicable to such
~ .:'~'~ ,:..-... · ; ? -. . .~. . ·
activities: '
(t)': "Rest/'ain" means to keep under' cdntr01' by the
'. .... ~ ;:'-- minimal use of' such .force," mechanical 'means or
chemicals as is reasonable having reg .ard to the physical
and mental condition of the patient.
' ' It wa~Ms2 Scheii's'°pinion that the Act thus:r~quires individual'assessment of each
· · patient~ in accordance 'with the statutory standard. With respect, to WLG patients,
the Schell opinibn §ugges'ted 'that in the absence of federal legislation dealing with
the matter, the minimal restraint policy favoured by the Union cannot be ~justified.
According to Ms. Finney's'testimony, when the Union received the Schell opinion,
it asked for an 'equivalent ~eriod of time to obtain a further opinion of their, own,
11
that period being, in Ms. Finney's view, three to four wceks. After that period of
time had passed, with no further opinion forthcoming, Ms. Finney made the
decision, in consultation with Branch Director Danson, to reinstitute the least
restrictive alternative policy with respect to WLG patients. It is this decision that
has led to the present grievance.
Two further developments should be noted. On December 20th, 1989, the
Union received an opinion from /ts counsel, Mr. Anand of Scott & Aylen,
indicating that in his view the Mental Health Act did not preclude a minimal
restraint policy with respect to temporary leaves of absence either with respect to
involuntary patients or with respect to WLG patients. In attacking the conclusions
offered in the Schell opinion, Anand placed some emphasis on Section 21 of the
Mental Health Act which permits the officer in charge of a facility to place a
patient on a temporary leave of absence from the facility "upon such terms and
conditions as the officer in charge may prescribe". Mr. Anand concluded that
minimal restraint could be one of those terms or conditions. This opinion was
made available to the Employer only in the course of processing the present
~eV~lCe.
Secondly, it is apparent that Ms. Valentine, the Provincial Co-ordinator of
12
that she disag'~:eed' with this propos~at in principle, she was 13repaired to aPprove it'
as an int':rim p61icy l~ending the Uitimdte'~resolutlon of the issue. In Ms. F'inney's
view, m~ Qommiitee wa~ ~eoccupied with security'issUe; and had loSt track of the
fac'i that Oak Ridge is a hospital with an obligation to prdvide"~reatmefit and
fissessment 'and to {~pose-restrain~ on the basis df the phii;sgphy of least
,' ', , ,~ -. ~. '. .,_ ~' ~ ~
res~ictive alternative. '~
' In any event, the minimal restlaint policy was implemented. Mr. Ralph
Rawn, an-Attendant 3 who served as C'd~Chair'' of ~he 'Joint' security Committee,
" '4 . .~; .'T. ;.~ .:.. ,. [....._ ,. . ..
when asked if there were any problems with' the implemerltation of the minimal
restraint policy, indidated that some patients refused to go to medical appointments
because .they did not' want to wear mechanical 'restrai~its in publi~] There was no
evidence led from' ~vhi~h one coulff conclude;that the§'~ patients either were or were
not patients who would have' been allowed to go on' .temporary leave without
restraints 'under the 1987 policy.
The Ministry was apparently cbncerned with respect to the change back to
a minimal restraint policy.' In August of 1989, a meeting-wis arranged involving
the Director and Assistant Director of the Psychiatric Hospi/tal Branch of the
Ministry, the Health Centre Administrator, Associate. Administrator Finney, Union
Vice-President Upshaw and representatives of the Union local to discuss the issue.
Branch Director Danson expressed his concerns with respect to the policy. They
were two-fold. He was concerned that the minimal restraint policy failed to
comply with the Ministry's policy of least restrictive alternative and that it was
potentially detrimental to the interests of those patients who did not require
mechanical restraints. As well, he was concerned that the policy did not comply
with the Ministry's obligations under the Mental Health Act to apply the least
restrictive alternative approach. At that meeting, it was agreed (though Ms. Finney
concedes that the Union did not have much choice) that the discretionary policy
would be reintroduced with respect to involuntary patients, leaving the minimal
restraint policy to apply oialy to WLG patients, together with an undertaking on
behalf of the Ministry that it would seek a legal opinion with respect to its legal
obligations concerning these two groups of patients.
On August 31st, then, Ms. Finney advised the Unit Directors and Ward
Supervisors that the interim policy would remain applicable to WLG patients but
that the use of restraints with respect to involuntary patients was to be "determined
'l
by the Unit Director with input from clinical team especially head nurse and ward
10
the' PsyChiatric Patien't Adi, ocate of fi'ce Iobbie'd'the Assistant Deputy Minister and
'Minister Of H~atth vigOrouSly t:~om August"23~/:l,:'i98~"'to:'(Sct6ber 12, 1989
(Exhibits ~30-3;~) in support'of the revoca'tion 'of th~' minimal r~/str~int policy and
that these efforts were brought to the attentioh roF'both~ Dansoh' and Finney by
'Valentine's pr/~ctice of sending them Coiiies 'bf fie/r 'leti~rs to the~ Minister and~
Assi's-tant D~puty' Minisier'.~' The egid6nce doeg' no/SuggeSt, hox~eYer, that Ms.
F'inney Was particulai'i in~lflenc~d '13~, these'views W~ich 'where, on the basis of her
testimohy, 'i:0n~istent with her own' 6pin'ioh of th~'m~tter, iii any event.
III
'" 'l};,,idence cOfic~rning thi: fiXnctioninig' 0~'the leasi restri~tive' altemative policy
.... on temporary leh~,e~' Wa~'l~t;-¢id~ci gy Ms~'~Finney and Dr2 Fleming'and, as well, by
Ms. Darlene Ayling, a regisie/'ed'nurs~ at Oak Ridge and Ralph Rawn. Ms. Finney
explained thai, Unde~.'th} ne~ 15olicy, 'th6 peoPle'involved in making the assessment
of the' level of restmini r~quii-ed ih an individuai cas6 'included the Unit Director,
the nursing staff and·'the other member~ of the clinical team, (the social worker,
~ych01~>gist,:re~'eationist, ~[c.} 'A' "sP'eciaI precauti6ns';Tf6rm ig t6'be completed
..... twentY-four hours b~fore any temporary leave' o'f absence. An assessment of the
patient's current mental status and security sffi. tus wilt be 'made
by the individuals identified above. Where a consensus is not reached, the case
will be referred up ultimately to the Associate Administrator. Immediately prior
to the leave, an additional information section is to be completed. Both Ms. Finney
and Dr. Fleming testified with respect to the kinds of factors that would be taken
into account in making the determination as to the level of security required such
as; length of time the patient has been in the facility (recent arrivals and remand
patients would be ineligible, for example, because of a lack of experience with their
condition); the patient's diagnosis; the mental status of the patient at the time; the
question of whether or not the particular patient is an elopement risk; whether the
patient has been violent on previous occasions with staff members; whether the
patient is angry for any reason or has recently had bad news; if the patient is on
medication, has he taken the medication; the. longitudinal history of the individual's
past offences. The input of the nursing staff was said to be of great importance as
they are familiar with the current situation of patients. Moreover, information of
current circumstances of note will be recorded on an on-going basis. Although a
staff member who might object to participating in a leave because of concern about
the Unit Director's determination of security., level could appeal the matter, this has
apparently not occurred. Rather, on a few...occasions, it appears that the hesitant
staff member has been replaced by another Who shared the view that a temporary
leave without restraints could be safely undertaken.
t4
Although Ms. Ayling indicated that the time period between preparation of'
the special precauuons form anti'il}e leave might be mor~ tha'n twenty-four hours,
as where the form ~s completed on Friday fo~ a Mofiday tempo~'ary' leave, this did
not appear to concern Ms. Finney. Ms, Pinney Was ii' the view that any other
~' r~levant information would be drb. wn to the att~niio/~ oftho~e responsible for the
': . lea3e'and acted upon." ir'was 'M's. Finney's'view that the policy had functioned in
the 'Past' and 'w~"s' functi6niffg gatisfact0rily and -that' those management
representatives who ~it on the Management Committee ~at supported a minimal
_, . " ' ~.~- i[;_ : '
rdstraint policy:'wlr( successfully 'impien~enting'the"ne~v policy and had made
decisions to allow temporary l~a~/eS.'witho~t physical restrainers, from time to time.
Ms. 'PinneY 'concede~ ~at the 'new policy makes li'fe more' difficult for those
involvedin implementing it ir~:~he s~nse that' it imposes ari obligatibn to make an
assessment and a decision and obliges the decision-maker to communicate what
may be viewed as b. negafiv~ 'decision to the patient in 'question. Indeed, it was
Ms. Finney"s View that this might explain, in part at least,, why the management
~epresetitatives on ~l~e JOint SeCurity Committee were inclined to ~upport a minimal
restraint 15'61icY.' " ~ '"'
15
IV
Before turning to consider the evidence in the present case concerning the
question of risk to employee safety associated with the new policy on temporary
leaves, it will be useful to describe morei precisely the nature of the obligation
imposed on the Employer by Article 1:8.1 of the Collective Agreement in
circumstances such as these. It is obvious that Article 18.1 imposes two different
types of obligations. First, the Employer is obliged to "make reasonable provisions
for the safety and health of its employees during the hours of their employment".
Secondly, both the Employer and the UniOn must "cooperate to the fullest extent
possible, in the prevention of accidents and in the reasonable promotion of safety
and health of all employees". The first obligation is often referred to as
"substantive" and the second "procedural".
As a preliminary point, it should be noted that the Union objected to what
it perceived as a lack of co-operation by the Employer with respect to the present
issue. In particular, counsel for the Union objected to the failure of the Employer
to draw the Union's attention to the various letters written by the Psychiatric Patient
Advocate Office to the Minister and Assistant Deputy Minister (Exhibits
I6 i
The difficulty of reconciling and appropriately balancihg institutional
objectives and the duty' to make' reasonable Provisions for emPlOyee health and
~a~ety is particularly diffic~it in the correctional 'settifig. It il ~1~' difficult in the
context of a psychiatric ~"
· hospital, perhaps ~specially' so iff~the context of a
· maximum security facility. One could completely eliminate any risk of injury only
by imposing conditions Of seclusion el: res{raihi which' would be inconsistent with
institutional object!yes, !.f not inhumane. Thus, the patients at Oak Ridge are not
under mechanical restraiflt at all times'when-they are within the facility. Indeed,
the use of such restraiht~ is ex'ceptional. Obviously, this i~ractice creates the risk .
of injur!e.s..jo-the staff; :In Ms,. Aylin.g.'s te.stimony,, graphic illustration of the
dangers Pr&'s6iited in this kind' 6f Work was. pr6vided. The risk of such incidents
occurring ..cannot, consi~tently with institutional objectives, be completely
eliminated· The question which m.u§..t.be .addressed, however, is whether or not
reasonable precautions to avoid them or to minimize the risk of associated injury
· , :..~' .! ~,. - . ;.:
have been undertaken by the Employ'er.
'13~deistandb, bly,:the Uni6ffplaces' some emphasis in the present grievance
on previous decisions arising in the correctional context. It is important to note,
t9
however, that the institutional objectives of a psychiatric hospital are not precisely
the same as those of a correctional facility. Thus, for example, the "Mission
Statement" of the Provincial Psychiatric HOspitals of Ontario (Exhibit 20) indicates
that one of the objectives of such a hospital is to provide a range of services
designed to meet the needs of the severely mentally ill and to provide services such
as the following:
- assessment and diggBQsis: a structured
process of clinical evaluation required in
order to understand the patient's
problems, assets, ::and needs, and
formulate a treatment plan.
- g'e~llIt¢/~: the means utilized in affecting
a cure or improvement of a psychiatric
disease or disorder, or in reducing,
alleviating, or managing the symptoms of
the condition. '
- r~habilitatioa services: the systematic
process of restoring and developing an
individual's competencies and skills, so
that he/she may function successfully in
the environment of hisser choice with
the greatest amount of independence
possible.
20
( \
30-32). in 6ur View, however, this dbes not constitute a b're,~ch ~)f the second
-branch of mrti~l~ 18.'l~'i't was'. not'~ "
· suggested that the Unior~ v/as ~tnaware of the
views o"f the Advo~a(e;s Office 'on this issue. Nor, is it otlr view :ti4at the written
expreksion °fviews by t'hki'~)ffice in Exhibifs 30-32 Was crmcal to the conclusions
reacl~ed ~'the )ec~iSns made by i~lsl Finh'ey in'eollabora~i6n With 'Mr. Danson.
Indeed, Ms. Finney had made her views knoWn on. these ~ssues, as had others, on
earliei' occasions. 'W}i~en'one io~k; to'the'activities of the Joint Security Committee
and the exchanges of views that took place, it is evident that there was a good deal
of~constflia'tibn~ and.:':disc~ssion '.with respect to .this issue. The procedUral
oblig~,iions imposed i>y'[~"" ""
Artidl~ { ~:.~ weri~, 'in our vi6w;~adequately complied with
: in the present case. .
The more important question, of course, and the real gravamen 'of this
Grievance is'the nature of the substantive burden imposed by Article 18.1 and the
application of that standard to the facts of the present case. It is important to note,
as previou.s decisions o~f, the Grievance Settlement Board have indicated, that
Article 18.1, does not impose,? obligation to provid.e an absolute guarantee of
safety. :It may; not .be. pos..sibte for the Employer to elim)nate all possible risks
associated ~with a particular institutional environment. The obligation, rather, is one
17
of taking reasonable steps and reasonable precautions to secure the health and
safety of employees. Moreover, a series of cases have noted that, in a correctional
facility for example, a balance must be struck between the needs and objectives of
the institution, and the containment of risks to the personal health and safety of
employees. As was stated in Union GrieV. ance and the Ministry of Correctional
Services, 69/84 at pages 7-8:
"It is necessary to balance the safety of employees
against the need for care and custody of the inmates
and the purposes of the institution. Proper planning
can reduce the potential or likelihood of incidents, but
it is not possible to eliminate all conceivable risks."
This "balancing test" has found favour with the Board on other occasions. See, for
example, Stockwell and Ministry of Correctional Services, 1764/87; Watts/King and
Ministry of Correctional Servicer 1367/90.:'
In cases such as these, it is not fatal' to the Union's case that' no instance of
incident or injury has occurred under the policy subject to attack in the Grievance.
See, for example, Union Grievance and the Ministry of Community and Social
Services, 1190/89. At the same time, it is necessary for the Union to establish "a
real or serious possibility of harm" . See, Union Grievance and Ministry of
Correctional Services, 69/84 at page 8.
prolonged psychiatric' ch're:' 'haaihtenanYe -.
· ,,; . · 'of the patient with a chronic illness at the
· . highes.t possible level of functioning, and
provided· in as humane and le'ast
..... reltrictive :h setting as possible.' ·
In the pres, ent .case, then, the Employer must be held to a standard of making
reasonable precautions for the health and safety of its employees in delivering the
kinds of services that constitute its institutional mission and mandate.
V
More particularly, it must be asked whether reasonable precautions are being
taken by the EmPloy. er with respect to the escorting of patients on temporary leaves
of absence.. The .position advanced by the Union, no doubt understandably, is that
many, if not all, of the WLG patients and the involuntary patients within the Oak
Ridge popu.!ation are, in some sense, dangerous. They have typic,.ally.arrived there
because of a h~st,ory' of co.m..mitting dangerous acts. Further, it is argued that the
abiliW of the psychiatric profession, to predict' recurrence of such conduct is
not..ori~usly low.and accordingly, the risks to which nurses and· attendants engaged
in escort work without minimal.'physii:al restraint constitute an unreasonable'risk
to their personal safety. It is not contested by the Employer, of course, that there
are a substantial number of individuals and indeed the majority of the Oak Ridge
patient population, who should not be allowed to go on temporary leaves of
absence outside the facility without mechanical restraints. The difference of
opinion between the parties, rather, is whether there exists a sub-population of
patients, for whom such restraints are unnecessary and who can be identified with
sufficient confidence that such patients can 'be allowed to go on temporary leaves
without such restraints without creating unreasonable risk to the personal safety of
the escorting staff.'
The answer to this question is to be found principally in the expert evidence
led in this proceeding concerning forensic pSychiatry. The EmplOYer led evidence
concerning these issues from the Psychiatrist-in-Chief of the Penetanguishene
facility, Dr. Russel Fleming. The Union led evidence from another expert, Dr.
Mark Ben-Axon, the Chief of Service of the Metropolitan Toronto Forensic Service
Clarke Institute of Psychiatry. Both Dr. Fleming and Dr. Ben-Aron are highly
experienced specialists in forensic psychiatry with impressive credentials, they
were both, in our view, credible witnesses.~ Although, as we shall indicate, their
opinions are to some extent in conflict on a 'few points, it is our view that there is
22
no material conflict between them on the issues of central importance to this
dispute.
Dr. Fleming, provided, in 'his testimony, an account of the various legal
' ' ~ i -t ..- '~
· .- 'o - ''k ' ' ' ' .72: ' ~ ;:,
categories of patients within the Oak Ridge population.. As has been indicated,
~ : ~. ¢,,.. .... -, '.-. ,-. ... :
~hey include patients in the WLG category who have been charged with typically
very serious offences but either found unfit to stand trial or not guilty by reason of
insanity. This is the largest group in the patient population. Voluntary patients are
those'who have been admitted into a psychiatric hospital under the applicable
provisions of the Mental Health Act which require that an involuntary patient be
determined to either constitute a danger to self or to other persons or to create a
risk of imminent serious physical impairment. Dr. Fleming indicated that within '
a maximum security hospital, only those who constitute a danger to others should
be admitted, th'ough they occasionally get patients in the other two categories. The
. . y ~,~.. .... ' .,r- ,~? . I.~. : ,
third, the pre-trial assessment group, no more than twenty in number, are in the
facility for thirty to sixty days and are there for an assessment.
Dr. Fleming also provided a detailed account of the different types of
clinical diagnoses that could be made of indiViduals that fall into these legal
categories. It is important to note that the clinical diagnoses run across these
23
categories. That is to say, the mental disorder of an involuntary patient may be of
the same category as that of a WLG patient. From a clinical perspective, the
largest group of patients suffer from a major mental disorder or psychosis,
frequently schizophrenia and may suffer from delusions, false belie(g and
hallucinations. Other patients suffer from bipolar affective disorder or manic-
depressive psychosis. Other clinical categOries include intellectually limited (or
developmentally handicapped), organically damaged (e.g., those with poor impulse
control - unpredictably violent). Another significant group would be diagnosed as
having "personality disorder" of which there are a number of sub-categories
including paranoid, schizoid and anti-social. The latter category includes
individuals who lack the capacity to experience guilt. They may combine this
problem with sexual deviance. :
Dr. Fleming also provided a brief account of changes in treatment strategies
and more particularly, the development of neuroleptic drugs in the 1950's. Such
drugs provided a treatment for schizophrenia which has enabled many
schizophrenia patients to be successfully t~eated and returned to the community.
In his testimony, Dr. Fleming certainlY did not avoid discussion of or downplay the
highly dangerous nature of some members .of the Oak Ridge population. He
24
did insist, however, that not all members of the Oak Ridge population are
dangerous. In his tcst}m~)ny, he °flgered cases
illustrative 0f ihdividuals who would
not be considered dang~r~usl An individual suffering fr~m profound depression~ for
example, may formulate the intention to kill.their spouse 3,nd commit suicide.
·" ' ' :~ 'Having succeeded only in the former act, they might be admitted to Oak Ridge.
Dr. Fler~ing indicated t~hat depr~ssion~is almost ir~variabl2~" a disorder which i§
treatable with various kinds o~' chemicals or biotogica~l treatment. Such an
individt~al would probably pose no risk either inside or outside the institution, but
* ~ ." " I : -' . .... .' i ·
might noneiheless remain Within the institution' for a p~riod 6f time.. Such an
individual .would not require, in his view,~ mechanical res~ain~ as a security
measure when on a temporary leave of absence. :
Similarly, Dr. Fleming suggested that a schizophrenic patient who had been
successfully treated would pose no danger. Hi mentioned the case of a
schizophrenic who Suffered from religious delusions, who believed that he must,.
as a test of his faith, kil'l his mother. Having done so, he was admitted to Oak
· Ridge. He was successfully treated and his religious delusions faded.. He was
described by Fleming as a quite'withdrawn lad, slight of build. Although he was
in Oak Ridge for some period of time, it was Fleming's vieiv'that he posed no
threat to anyone.
Once this individual was treated with drug therapy and in touch with reality,
he understood what he had done and became very depressed. In Dr. Fleming's
view, the process of treatment for such an individual is not just medication, but the
provision of support to assist such an individual in rebuilding the shattered life and
the individual's self-esteem. The therapy would include developing an
understanding of the illness and, hopefully, a return to autonomy. In Dr. Fleming's
view, the entire program at the hospital is aimed at achieving this sort of objective
with this kind of patient. The program provides vocational assessment, group
therapy, individual therapy, assertiveness training, education concerning the illness
in question and its treatment. Alt of this is geared toward restoration of mental
health, confidence and self-esteem.
In Dr. Fleming's view, it is quite inconsistent with these program objectives
to take such an individual, who poses no security threat, and insist that when they
visit a doctor or dentist they must appear in public wearing handcuffs and belts,
and possibly, leg irons. Even though these measures might have been imposed
because of a blanket policy, it would nonetheless communicate to the patient that
they really are not to be trusted, that they really are dangerous and that they should
26
" " feel guil'ty i~or ~vhat' they have do~e. In Dr. Flemir~'g'g view, 'not only are such
· ,~ , ,~ ..,~ .' .,,' , : ~, . ~ ..
securiiy measures riot W'firranted in the circumstances, they ~re detrimental to the
recove~ of thepat t ' " : ~ -' ''"
&. ~ r'_. i ' "I' in sl4ort,'then} it ~va~ Dr. Flenli'ng'S evid/~nee that (a) there ar~ in fact patients
at Oak Ridge whose mental sta~tis i's su;h' that theY do not Pose'h threat to the
· safety 0'f others, bna (b3. ~at the lmposlt, on of'mechanlcal 'r~str~ints when such
" individuals lea~)e thc facility for medical· aPPointments ahd the: like is not only
unnecessary, bi~t c0nifitutes~an-undermining of their therap3)2' 'Again, we note that
it was 13r. Flen~ir~g;S evidence that sticl~'individuals 'are' to b~ f6~ind both in the
.... WLG sd~hieht of tile patient pbpulatioh' and in the involuntary patient group.
These two gr6ups of patients ar~ not, in Dr. Fleming's view,; clinically distinct.
It' must fffrther be asked, h6WeOer, wfiether such patients can be accurately
identified. In dealing with'this iSSue, of c°ui-se, Dr: Fleming was' ~onfronted; both
in- his examination-in-chief dmd ;n cro;s-examinati6n,' With ~he well' documented
difficulty the psychiatric profession endures in predicting dahgerous behaviour or
recidivism of individuals who have suffered mental illness. Dr. Fleming conceded
the validity of this point with respect to the predictions with respect to the longer
term. It was his view, however, that predictions with respect to the short-term, as
in the case of escort services concerning a medical appointment, are much easier
to make with confidence. It was Dr. Fle.,ming's view that the staff at the Unit
Director level are quite capable of making this type of decision with input from the
staff. There are cases in which it is easy to conclude that restraints are necessary
and another small group of cases in which it is easy to conclude that no restraints
are needed. The important point .is that in the middle category, those involved in
making the decisions will, in fact, err on the. side of caution, in Dr. Fleming's
view. The natural tendency of people faced with such decisions is to err on the
conservative side. They will be concerned, and tightly so, about safety and
potential liability. Moreover, ifa staff member feels uncomfortable with a particular
decision, a more senior person will become involved and make the decision in
question. When asked on cross-examination what an acceptable risk would be, Dr.
Fleming indicated that it is difficult to quantify risk numerically, but that at some
point, the risk of injury to the staff is so low, that the therapeutic interest of the
patient shrmld intervene. Dr. Fleming indicated, however, that "we would not take
risks with someone who can be assaultive - that relates to the safety of the staff
members".
28
' in summary, Dr: Flemi'ng's ~vidence pro(/'i~l'ed St/l~pori"~6? the following
propositions. First, there exist patients, both Within the'~VLG ahci ih"e involuntary
patient groups, who are not dangerous in the sense that they pose a threat to the
physical safety of the staff or others. Second, it is his view that it is important to
the therapy of such individuals that they not be required to wear handcuffs and
belts while on t~mPorary leaves bf ~bsence from the facility. Third, it is his view
that such individuals can be identified with suffici~n~ accuracy that the risk of
injury to the escort '~taff is.s° low that therapeutic X~lU~s'~ough/t;'
be furthered by
allowing leaves o'; absence withOut 'restraint. A~gain; h~' einphasized that any
--.,--
--_
member of the staff that was concerned about a particul~ir jUdgement could raise
the matter with a more senior person and have the ma~er~rdx~iewed.
Dr. Fleming's evidence, then, provides strong support for the proposition that
fl~e En~Plo~e~- is taking reasonable 'p/'ecaUti6ns to protect the health and safety of
the employe~s inv0iVed in escorting patients on tethporary leaves of absence and
fiirther, offers support for the proposition th~t the Em~loye¥ is striking an
appropriate balance between the need to prbtect the safe~y of employees in the
context of furthering, the therapeutic objectives of a psychiatric hospital. We turn
29
to consider, then, the extent to which Dr. Fleming's evidence is undermined by the
evidence of Dr. Mark Ben-Aron, the forensic psychiatrist who testified on behalf
of the Union.
VI
As has already been indicated, Dr. Ben-Aron is a highly experienced and
highly qualified forensic psychiatrist. He is .highly experienced in assessment. Dr.
Ben-Aron has more than passing familiaritY with the situation at Oak Ridge. He
served as a consultant psychiatrist to Oak Ridge for approximately three years
beginning in September of 1987. As well, he served as Unit Director of Ward 5 of
',
the Penetanguishene Mental Health Centre (medium securitY unit) fi.om June 1988
to January 1989.
Notwithstanding Dr. Ben-Aron's expertise and his familiarity with the issues
involved in the present grievance, it is interesting to note that Dr. Ben-Aron was
not asked to give and did not give evidence which contradicted the evidence of Dr.
Fleming on some very important points. Dr. Ben-Aron was not asked to and did
not contradict Dr. Fleming with respect to the question of whether there are, within
30
a patient' p~)pt~iation such as that: at Oak Ridge("a~ significant humber of Patients
who do i~ot constitute a thre~/t tb the;physical'shfdi~, ~ihc~ secuhty"bf the staff. Dr.
Ben-Aron was not asked t0"a~r/d' did not contradict"'Dr.' ' ' :' ' ""' '
Fleming s'.evidence With
respect to the treatability of the conditions suffered by some of the patients in a
patient population of this kind.' Dr. Ben-3~r6n was noi asked to and did noi
contradict Dr. FI~ming's- ~vide~nce wiih respect to the ~l~'edic~hbility 0f safety in,the
context c~f escbrting phtients ot~tempor&ry 'leave~§ c~f ab~ence.~'"Finally, Dr. Ben~
Aron was not asked to and did not contradict D~:. Flemihg's evidence with respect
t6~the ability of the st~ff of'il~e ki~d involVed m the decision-making at Oak Ridge
to make judgment~ Of'
thi~ kind.:: "~ '~ ~" " ' '
Moreover, there were aspects of Dr. Ben-Aron's 't4gti~dny which· were
directly Supp;rtive ;f:P0~hts m~d~le~by:Di:.'~ Fieming.:'Th~s; Drl Ben-Aron, as one
W;~ld expe~t, agreed ~ith'~the noii~fi that a'psychi'atric hospital has a therapeutic
missioh,' thht if is required to pi0vide a full spectrum of treatment', assessmeni and
interment'ion to m6~t patienf'needs in a muiti-discip~inary em/ironment, and that the
objective of the~e programs is i0 assist the patient to return to the community in
an adaptive 'fashion. Tl~e prog~h~ia of~guch a facility aims' at b'eihg rehabilitative in
the hope that the patient will ultimately be able to go back into the community and
where that is not possible, to provide as humane care for the patient as is possible.
31
Further, he appeared to agree with the general approach of least restrictive
alternative. It is, he noted, "the law of the province". Dr. Ben-Aron did, however,
disagree with Dr. Fleming on two points.
First, Dr. Ben-Aron was asked to consider whether there exists a
scientifically valid hierarchy of restraint measures which would establish, from the
lowest to the highest, which is the most restrictive type of restraint. In his
evidence, Dr. Fleming had suggested that a published article by some of his
colleagues (Exhibit 22) demonstrated that there exists a hierarchy of this kind
beginning, at the low end, with a "laying-on of hands" and moving through
chemical restraint to some kind to seclusiOn and finally to mechanical restraints.
The point of this evidence, apparently, was to indicate how the policy of least
restrictive alternative would be applied in practice at a facility like Oak Ridge. Dr.
Ben-Aron's evidence, on the other hand, questioned the scientific validity of a
hierarchy of this kind. It was his view that if such a hierarchy was offered as a
particular practitionerrs institutive sense of the matter, he could not argue with it.
If it was to be offered as a matter of scientific troth, however, Dr. Ben-Aron
thought that more rigorous study would need to be done to establish this point.
32
In 6ur view, Dr. Ben~)~r'6n's evidence-bh~ this issue does~ nor significantly
undermine the 'evidoiide'b'f Dr'. Fleming. :It is ilot:~at:all ,clear4hat. Dr. Fleming's
tegtirfiony{vas~iniended a~ a comment~ 6n the scientifiC~validity of, the work of his
'cOlleagues.' Indeeit; .the articl~qt~elf (E~Xhibit:,22)"d0es not claim, scientific rigour of
"tile kind r~ferred' to by Df: B6n-"Aron; M6i'epgrticUlarl~, such' cOncems do not'
undi~rniine ;Dr.-' Fleming's su'~estiOn :that'Cin the: Oak~.Ridge contfxt, mechanical
restraifits are'typichllY viewed by both patidnt~-and st~/ff as' being the most intrusive
t ' ~ , · ' -;
or restrictive restraint alternative. ~ ~ '- · ~-... · . ;~
The secOnd p0in~ ofinc6nsistency~ b~t~een Dr. Ben-'Aro'n's evidence and that
~' of Di:. Fle/ning 'relat'es to .the therapeutic ·value of'using 'the.least restrictive
alternative approach t° th~~ chOice'of secarity precautions on temporary leaves of
'~ absence, simply Stated, Dr. Ben-Ar0n'S view was'quite sceptical of the therapeutic'
advantageg of this p6tic~. Dr. Ben-Aron indicated'that:it is difficult to generalize
"about'the' advantages Or dis'advantage~ of blanket security ·Policies of various kinds.
" Fo~ some extl:~mely-ill patient,' con6rete security hi'rangements may be of great
" c6mfort. ~Fc;r those {vho'are'mor6.healthy or becoming'so; rigid sectirity parameters
m~i3iirfipos~ gi'e~it negative psychologichl imp~ic~ The effect may be to
33
erode the patient's self-confidence, autonomy and psychological skills. On the
other hand, it was DrL Ben-Aron's view that the case by case approach to security
measures also has some potential negative impacts. Patients may become fixated
on reducing their level of security and may become hyper-vigilant with respect to
their presentation of self to the staff. Decisions to deny reduced security may have
a negative effect on the patient-staffrelationship and may create resentments among
patients. (Parenthetically, we note that Ms. Ayling believed that under the case by
case approach, some patients who would be required to wear restraints had decided
to not attend their appointments). Dr. Ben-Axon further noted the problem of false
positives. That is to say, especially in a case such as the present where the
discretionary policy is expected to be applied conservatively, there may be a
significant number of patients who will be denied reduced security even though
they pose no significant threat to the physical safety of the staff or others. Though
Dr. Ben-Axon conceded that the availability of reduced security could be of
advantage to those who were granted it - he conceded that the use of privileges as
incentives is a valid therapeutic strategy - it was his view that the benefits of such
a policy would be outweighed by the disadvantages if in fact as few as ten percent
of the population would be eligible for leave without restraints and some significant
number of the remaining ninety percent of the population would be
34
.subject to the "false positives" problem. In short, from Dr. Ben-Aron's perspective,
the therapeutic disadvantages of the new Oak Ridge poli~y on temporary leaves
outweighed its therapeutic advantages. Thus he would ~avour '~mething in the
order' of a minimal restraint policy. It was his view, hbwev~r, tl~at'within such a
policy, some patients would be restrained with handcu'ffs ahd'a belt and.others
might be restrained in addition with leg-irons. The poli~:y should continue to offer
a choice between full restraints and lesser res~aints in order to gix)e effect, in his
vieW, to the policy of least restrictive alternativel within this more restrictive~
contextl
In summary, then, Dr. Ben-Aron's evidence seriousiy questions - indeed he
disagrees withDr. Fleming on this point - the therapeutic value of the interpretation
given, to the least restrictive alternative philosophy by the Employer in its new
temporary leaves of absence policy.
Given this difference in opinion between Drs. Fleming and Ben-Aron, we
must consider the potential relevance of this disagreement to the present dispute.
In our view, the fact that such differences oi' opinion exist is of no assistance to the
present grievance. The fact that a particular therapeutic strategy may be a
35
matter of contention within professional circles, does not lead to the conclusion that
neither the Ministry nor the Ministry hospital can make an effective decision to
implement such a strategy. Professional judgments as to the optimal therapeutic
.i
strategy to be followed must be taken by professionals within the Ministry and
within these institutions. Them is nothing in the evidence, in this case as we
understand it, to suggest that the analysis of Dr. Fleming and those of his
colleagues who agree with him is clearly wrong-headed or taken or acted upon for
any reason other than a professional judgment that is attempting to maximize the
therapeutic effectiveness of the program at Oak Ridge. Indeed, it is common to the
evidence of both Dr. Fleming and Dr. Ben-Axon that the case by case approach to
restraint on leaves of absences will have therapeutic advantages for some patients.
In summary, then, it is our view that the evidence of Dr. Ben-Aron does not
undermine the central points established by Dr. Fleming's testimony. Indeed, as we
have indicated, Dr. Ben-Aron's evidence essentially leaves untouched the main
points supported by Dr. Fleming's testimony. To the extent that Dr. Ben-Aron's
testimony raises some question about the therapeutic value of the new temporary
leave policy, it is our view that it does not undermine a conclusion that the policy
is one which is aligned to the therapeutic objectives of the Oak Ridge facility and
is one which represents a rcasonabl~ attempt on thc part of the professional
leadership of the facility to pursue those therapeutic values. We nebd not 0ecide
whether, as a matter of principle, a particular therapeutic approach could inherently
pose such risks to the staff that it cannot' be implemented without a 'breach of
Article 18. In our view, the ~rapeutic appro~ch adopted in' this cas~' is nbt one
which would be Caught'l~y such a principle. The i'ssue befm:e this' Board, then is
whethe3, in the context o f this, therapeutic strategy, reasonable precautions are b'e. ing'
taken to protect the health and sa(ety of the Employees,
As we have indicated, the evidence of Dr. Fleming concerning the ability.
to identify patients who can be safely allowed to go on leaves of absences with no
restraints was not challenged in the testimony of Dr. Ben:-Aron. The:only evidence
which might be thought to undermine this point, fi.om the Union's perspectiVe,
related to an episode in 1985 which was recounted by Mr. Rawn in his testimony'.
Mr. Rawn was involved in the transfer of a patient to the Ministry's facility in
London. The patient was being transported in a van without me'cha'nical restraints.
At about Cambridge, the patient tried to smash'the side window of the van With his
head.' Mr. Rawn and the driver were required to physically restrain the patient
37
and apply handcuffs. Although it was not Mr. Rawn's evidence that he was injured
in this exercise, it was apparent that this was a situation in which there was a risk
of injury.
Although we well understand why Mr. Raw& and no doubt others, find this
to be a troubling incident, we do not find it'; to be a compelling basis for clrawing
inferences with respect to the temporary leaVe of absence policy. No evidence was
led which indicated the nature of the decision-making process which resulted in the
conclusion that the patient in question could be moved to the London facility or
that he would not be required to wear mechanical restraints while in transit. No
basis was offered in the evidence that wOuld enable us to conclude that this
particular patient or this type of patient would be allowed, under the new policy,
to go to medical appointments without mechanical restraints. No evidence was led
with respect to the security arrangements within the van other than the non-use of
mechanical restraints. In short, without more, the account presented to the Board
of this incident does not offer a satisfactory basis for drawing conclusions with
respect to the potential for risk associated With a new temporary leave of absence
policy. We are left then, with the view of Dr. Fleming, which in our view was not
successfully challenged, that patients who are not dangerous and who pose no
38
signilicant thr~at to the safety of employees can be succes§'fully identified under the
new policy. "
Mti~h attention was devoted by c'6u~tsel to the relatiVe ~nerits of the legal
opinions Offered to the parties by Ms'. ~ciaell (Exhibit 8) and' Mr.' Anand (Exhibit
9)~ It will l~e recalled that ':
:. .L Ms. Scheli offered th~' view that the case by case
approach to restraint was' orie which was required b3)' lax~ both for WLG patients
and for involunt~/'y pati~r~ts. 'Mrl Anand's opinion came to'the equal and opposite-
c0nciusibn that a mir/imal restraint' policy bf the kind favoured by~ the Union' was
legally permissible with respect to both groups Of 'Patien{s. Counsel for the
Employer was of the view that the Soundness of the' SchelI opinion would lend
support to the Employer's position in this grievance. Counsel for the Union, on the
other hand, offered the view that it wag df some assistance' to the Union that the
Employer may welt have acied on the basis of a misguiiled legal opinion.
It is our view that nothing tums, IZor p~resent purposes, on the proper
resolutio:n of this difference 'of opinion.. In the first plhce, the evidence in this
proceeding indicates that the pursuit of the least restrictix)e altemative approach in
the new policy is one which was favoured by Ms. Finney, Dr. Fleming and
39
Ministry officials on policy grounds prior to the receipt of the Schell opinion.
indeed, Oak Ridge had adopted such a policy, albeit controversially from the
Union's perspective, for such reasons in 1987. On the other hand, if the Anand
opinion was correct, it is our view that the Employer would not be driven to adopt
the minimal restraint policy preferred by the Union. It would, in our view, still be
open to the Employer to make a reasonable judgment that the proper pursuit of
therapeutic values required adoption of the least restrictive alternative approach in
the context of temporary leaves of absences, provided, of course, that reasonable
precautions are taken with respect to the health and safety of the Employees.
Accordingly, we do not find it necessary to offer a view as to which of these two
legal opinions is the correct one.
IX
It remains, then, to apply the standard set out in Article 18.1' of the
Collective Agreement and in the relevant jurisprudence of this Board described in
Part IV of this Award to the facts to be found from .the evidence led in this case.
We have concluded that the evidence does-not support the proposition that the
Employer has failed to discharge its obligation to make reasonable provisions for
the shfety and h'ealth of its employees di~ring thc hours of their' employment in the
context of the new policy on temporary leaves. The evidence'befi3m this Board
supports the conclusion that the Employer.has fashioned a policy which gives
.appropriate deference to the safety intei'ests 0f the employees. The evidence
indicates that there are patients within the Oak Ridge population who do not pose
a significant threat to~ the safeiy of employees: on escort services and who may be
escorted on temporary leaves of absence for medical and otl~er compassionate
leaves' 'without restraints. The evidence supports the view that it is in the
therapeutic interest of Such~ patients that they be permitted to go on temporary
leaves without mechanical restraintsl The evidence supports the proposition that
such patients can be identified by the responsible personnel, including affected
members of the nursing and attendant staff, such that the risk to the safety o£ the
staff is minimal. We note, further~ that affected members' of the staff participat~
in fl~e decision in question, and are able. .to state any reservations they may have.
We were' noi'made aware of' any member of the staff who had expressed such
reservations being required to serve as an escort in those circumstances. Nor were
we made aware of any situation where a judgment made to allow no restraints Was
considered, by any member of the bargaining unit to be 'questionable. More
importantly, the new policy appears to represent a valid attempt to balance the
therapeutic objectives and needs of the institution, as a psychiatric hospital, and at
41
the same time take reasonable precautions to protect the health and safety of the
employees,
For the foregoing reasons, then this grievance is dismissed.
Dated at Toronto, this it, day of September., 1995.
J. ~{Jn
~ Addendum tO
I concur fol Iow.
rs, Member
I concur
G. Milley, Member
42