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HomeMy WebLinkAbout1993-0757.Meagher.95-04-27 Y' f \ Y \ ONTARIO EMPLOYtS DE LA C6URONNE CROWN EMPLOYEES DE L'ONTARIO 1') 1111 GRIEVANCE COMMISSION DE yvt~ . ' .~\ - g;o:-~ SETTLEMENT REGLEMENT BOARD DES GRIEFS vi ~ ~ 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G 1Z8 FACS/MILEITELECOPIE (416) 326-1396 GSB# 757/93 OPSEU# 93E057 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Meagher) Grievor - and' - The Crown in Right of Ontario (Ministry of Health) Emp10yer BEFORE: S. stewart Vice-Chairperson . M. Lyons Member D. Clark Member FOR THE D. Wright GRIEVOR Counsel Ryd~r, Whitaker, Wright Barristers & Solicitors FOR THE J. Crawford EMPLOYER Deputy Director Legal Services Branch Ministry of Health HEARING December 8, 1993 January 6, 1994 April 12, 13, 1994 May 19, 1994 June 3, 1994 July 4, 14, 29, 1994 September 27, 1994 October 11, 18, 1994 January 5, 6, 1995 -- --- \ \ DECISION In a grievance dated April 31, 1993, Mr. L. Meagher claims that he was dismissed without just cause. At the time of his dismissal, Mr. Meagher was employed as a social worker at Whitby .1 psychiatric Hospital. He had been employed in that position I since 1989. Mr. Meagher obtained an MSW from Carleton University I I in 1968 and he has worked in a number of positions as social I ~ worker since that time. His resume indicates that his position I I with the Whitby psychiatric Hospital was his first employment in I I a hospital setting outside of field placements when he was a student. I Mr. Meagher was discharged~by letter dated April 30, 1993 signed by Mr. R. Ballantyne, administrator. The relevant portion of the letter of discharge states as follows: I am writing to report on my conclusions resulting from the allegations made that you engaged in physical contact with one patient - - and made improper advance [sic] toward another. Based on the evidence brought forward I conclude the following: - 1. that you violated the trust expected of a professional in your role with two patients of the facility. .l 2. that you initiated inappropriate physical contact with one patient of the facility on three occasions and made inappropriate advance [sic] toward another patient on one occasion. 3. that you used sexually explicit slang language with two patients. 4 that your conduct was unprofessional by engagiqg in practices which were uncon- I I \ 2 venti9nal and unacceptable (e.g , touching, -use of slang, lack of record~ng, meeting with patient alone in your car in a park). I further conclude that, given the above, your professional performance fell below acceptab!e standards of practice. As a result, you are now terminated as an employee of Whitby psychiatric Hospital effective today. The allegations against Mr. Meagher arose in March, 1993, .r ~ based on information 'from two patients relating to events in the winter of 1992 in the case of one patient and in the summer of 1991 in the case of another patient. At the outset, it was the Employer's view that Mr. Meagher had made sexual advances to the two patients. In a letter dated March 19, 1993 Mr. Meagher was advised that he was suspended and that a meeting would be held to deal with allegations that he "... engaged in sexual contact with one patient and made sexual advances towards another". However, and notwithstanding the reference to . "advance" in the letter of discharge, Mr. Ballantyne testified that at the point of discharge it was accepted by the Employer that by virtue of the fact that the evidenc~ did not establish that Mr. Meagher had ihitiated or attempted to initiate touching sexual organs, the Employer did not consider Mr. Meagher as having engaged in sexual. advances. However, Mr. Ballantyne indicated that he considered Mr. Meagher to have engaged in inappropriate physical contact. Mr. Meagher was initially advised only of the allegations relating to the patient who claimed physical contact. Mr. / \. 3 Meagher immediately acknowledged that he had engaged in physical contact with a patient. He explained that his, actions were intended to be therapeutic While there was ,some ,dispute about the precise time that he named the therapy, it was common ground that Mr. Meagher identified the therapy he was practising as - bioenergetic therapy 'The position of the Employ.er was that Mr. Meagher acted inappropriately in employing what_was identified as ~ bioenergetic therapy in that he employed it without sufficient training, without regard to its inappropriateness ,f~rpatients who were victims of sexual abuse, without documenting his actions and without authorization from his supervisors. Indeed, it is the Employer's position that Mr. Meagher was aware from a discussion with Ms. V. Sadana, the director of' social work ~t the hospital, that the Employer did not authorize this; kind of therapy. It was 'the Employer's further position that Mr. Meagher had chosen inappropriate settings to engage in such therapy. As . well, it was the'Employer's position that Mr. Meagher had inappropriately engaged in the use of sexually explicit language. Mr. Meagher testified that he was introduced to bioenergetic therapy between 1985 and 1989, through lectures bya child abuse consultant employed by Durham Region, Mr.G. Fair. Mr. Meagher attended two lectures given by Mr Fair, each approximately one hour in length. Mr. Meagher testified that he spoke with Mr. Fair after the lectures and he obtained articles and books about bioenergetic therapy Mr. Meagher testified that he attended a i \ 1 4 two hour seminar given by Mr. R Pepler, a fellow social worker, at whitby psychiatric Hospital dealing with bio~nergetics and what was described as "body work". Mr. Meagher testified that he read the seminal wor~ on the topic, Bioenergetics by Dr. Al~xander Lowen, a psychiatrist. In his evidence, Mr. Meagher identified a number of other texts that he had read relating to bioenergetics. Excerpts from the introduction and the table of ~ contents of one of the books that he referred to, The way.u to vibrant Health - A,Manual of Bioenergetic Exercises, by Dr A. Lowen and Ii>. Lowen, were filed with the Board. The introduction to this book defines bioenergetics in a manner consistent with the description provided by a number of the witnesses who had some experience with the teaching and practice of b~oe~ergetics. ~ Essentially, bioenerget~cs is a form of therapy that has as its premise the concept that there is a fundamental relationship between what takes place in the ~ind and what takes place in the . - body, wit~ that which takes place in the mind being reflected in the body and what takes place in the body being reflected in the mind. The introduction of the Lowen and Lowen text, supra, refers to manipulative procedures and special exercises as part of the "body work" of bioenergetics. The text states that: The exercises a~e des~gned to ,help a p~rson get tn touch with his tensions and release them through appropriate move~ent. The manipulative procedures consist of massage, controlled pressure, and gentle ~~ ~ touching to relax contracted muscles. It is important to know that every contracted muscle is blocking some movement. The Lowen text, Bioenerqetics, supra, also refers to I I i I \ \ , 5 ; massage as part of bioenergetic therapy The Lowen and Lowen text refers to massage of variousJparts of the body. However, we were not directed to a specific reference to stomach massage Mr. Meagher testified that following Mr. Pepler'S seminar he and Mr. Pepler had ongoing discussions regarding bioenergetic therapy and techniques. Mr. Meagher testified t~~t Mr Pepler ~ demonstrated a number of techniques to him, inclUding massage of the stomach area. He testified that he began to practice bioenergetics in his part-time position with the Catholic Community Services. He testified that he practised bioenergetic techniques on 8 or 9 clients, which involved touch, including massage of the stomach. Mr. Meagher test if ied,. that his practice of bioenerge.tic therapy, which he also described as therapeutic touch, was governed by the same considerations as other forms of therapy. He would consider whether it would be appropriate. therapy in the case of any particular patient, it was necessary to obtain consent from the patient and assess the effectiveness of the therapy as it progressed He testified that the sexual organs and pUbic area would never be touched in the course of this therapy. Mr. Meagher testified that he did not initially practice bioenergetic therapy with any of his patients at, Whitby psychiatric Hospital as most of them had major psychiatric disorders and he felt that bioenergetic therapy would not be of -- II \ 6 assistance to them Mr. Meagher was charged with sexual assault as a result of engaging in stomach massage of a client of the Catholic Community Services. He was acquitted of those charges. Mr. Meagher'S supervisors became, aware of the charges as a result of Mr. Meagher' telling them about the charges. In the spring or summer of 1'992, Mr. Meagher and his supervisor, Mr. E. 'Smith, 'came to see Ms. Sadana, who, as previously noted, is the director of social work at the 'institution. Ms. Sadana testified that she was advised that criminal charges had been laid against 'Mr. Meagher in connection with therapy that he provided for a client of the Catholic Children's Aid Society. She further testified that Mr. Meagher told her that the therapy that he had engaged in that gave rise to the charges was rUbbing the client's stomach. ,Ms. Sadana also testified that there was some discussion about - the importance of judgment in selecting a particular form of therapy for clients and the importance of obtaining consent. Ms. Sadana testified that at that point in the discussion she "said something to the effect that because of this we don't practice this type of therapy at the hospital". Ms. Sadana testified that she saw Mr. Meagher on a second occasion about the matter, which she characterized as: "basically to see what he was experiencing and offering support". Ms. Sadana testified that she advised Mr. Ballantyne about the charges l \ 7 In his ,evidence!, Mr Meagher took issue, with some aspects of Ms Sadana's testimony as to what transpired in their discussions j relating to his disclosure of the criminal charges Most significantly, Mr. Meagher denied that Ms'. Sadana 'made a .- statement to him indicating that the kind of treatment that he had referred to did not take place in the hospital. ~ r It is apparent from Mr Meagher'S evaluations that prior to the Employer's knowledge of the events giving rise to his discharge, Mr. Meagher was a valued employee. His evaluations are very positive, with the one criticism of his perfo~mance being in relation to his difficulties keeping up with his paper work. The following excerpt fro~ Mr. Keagher's september 4, 1990 , evaluation is ~ypical of other evaluations fileg with the Board: During his employment on the S.T.A.T. unit, ~r. Meagher has demonstrated excellent social work skills. His work shows- a genuineness and respect . for patients. He is skillful in short term crisis and in preparing patients for transfer to a specific treatment unit or discharge. Hi~ approach to patients is very supportive as he, helps to reinstitute the development process. Whenever possible, he includes the family in treatment ~s well as networking on their behalf. He perceives his role to be an active participant in th~ patient's life in order to assist in the healing process and improving t.l'),~ir "quality of life". Mr. Meagher is a very co-operative and conscient~ous worker which is a definite asset to the mUltidisciplinary team His own self-confidence, skills and respect for others has helped gain the confidence, support and respect of other team members He works well within the team in order to enhance the patients' well-being. During his time on the S TAT unit, Mr. Meagher has taken responsibility for his professional development by reading and attending education workshops and seminars - --- ( . 8 This has given him a greater knowledge of mental illness, which he has integrated into his practice. He has also become more familiar with community resources and how to access them. Mr. Meagher meets regularly for supervision. He has a positive working relationship with his supervi90r and finds the time stimulating and challenging. He feels free to consult when necessary and is very open in discussing his cases. As Mr. Meagher is becoming more accustomed to the fast ~ pace of the unit, he finds the work easier. since he has set aside a specific time (Wednesday afternoons) to complete paperwork, he has shown iroprovement in completing the psychosocial assessments and discharge summaries within the time frame. "'. A subsequent evaluation carried out by the .same supervisor, --_.- - Mr. E. Smith, dated January 29, 1993 states in part: GENERAL SOCIALWORK,SKILLS Lionel has demonstrated excellent social work skills. He is caring and supportive, as he helps his patients deal with their difficulties and builds on their strengths. He treats his patients with respect and - they, in turn, feel comfortable with th~s approach and - trust him. Although Lionel finds his split assignment somewhat frustrating at times, in that h~ needs to be in both places at the same time, he, has nevertQeless adapted well to this and sees it as a new challenge. Lionel values the treatment team and has also made a valuable contribution to it. SPECIFIC SOCIAL WORK SKILLS Lionel has e~cellent social work skills. He completes a very thorough psychosocial assessment, giving careful attention to all areas of the assessment. He has, a good knowledge base and uses different modalities of treatment in different situations. He is skilled in marital, family and individual therapy and uses a cognitive approach as well as brief therapy methods and psychodynamic approaches Lionel is very supportive to his patients and works diligently with them. He has a good, knowledge of community resources and uses l \ 9 them very appropriately. SPECIFIC SOCIAL WORK SKILLS He is thorough in his discharge plann)..ng, making sure that all referrals have been made to provide follow-up when this is necessary Since working part-time in t~~ Approved Homes Program, Lionel is using his group skills, as he operates a group once a week in the home. ADMINISTRATIVE/ATTITUDINAL SUMMARY Lionel is a very conscientious and co-operative social worker. He is flexible and adapts read~ly to new situations, as evidenced by his change to a split assignment during the past year. He has a good understanding of the needs of tpe hospital and the services provided and works within these parameters. Lionel has a good understanding of the Mental Health Act and hospital policy and procedures. Dq.ring the past year, he has worked hard at meeting social work standards. Although he has made improvements in meeting recording standards, this is an area that he needs to continue to work at. The assessment goes on to note that Mr. Meagher "takes responsibility for his own professiopal development and that he "continues to read new information to keep himself updated, as . -... well as attending grand rounds and pee~ consultations". The evaluation also states that: "Lionel attends supervision on a regular basis. He values this ,time and uses it in a constructive way. .. When he commenced his employment with Whitby psychiatric Hospital, Mr Meagher was assigned to the short-term assessment and treatment unit (STAT). Mr. Meagher'S supervisor was Mr E Smith. Commencing in May,. 1992, Mr. Meagher was given a split assignment, to inpatients in the acute intermediate treatment \ 10 unit (AITU) as well as to patients in approved homes Mr Meagher's supervisor for the AITU portion of his assignment continued to be Mr. 'E Smith. He was assigned a new supervisor for the approved home portion of h~s assignment, Mr. R. Kuchmuch. , Mr. Meagher testified that he felt responsible for "most of the treatment" .of his patients in the approved ho~e ~ He would meet with each patient alone once or twice a w.eek. A community psychiatrist saw 't::he patients once a month. He testified that, unlike the hospital environment where there were a number of health professionals available, he was the main contact with the patient when the patient was in the approved ho~e. He testified that his understanding was that his role was to provide supportive therapy to patients. He was to provide a written report on each patient on a monthly basis. Mr. Meagher testified that there was to be meetings with Mr. Kuchmuch and other social . workers assigned to the two approved homes. However, these meetings were not always held. He testified that when the meetings were held, the focus of the discussion was the program rather than individual patients. Mr. ~uchmuch identified a number of dates on which meetings were scheduled with Mr. Meagher, however he was unable to be certain as to which meetings actually took place. However, he testified that he was in touch with Mr. Me~gher regarding the approved home patients. Mr. Kuchmuch tes't::ified that there was no J \ 11 discussion about the use of bioenergetic therapy in the case of a particular patient, hereinafter identified as "Mr X" and that he would "most assuredly" expect to be advised 'about suCh a ,matter Mr. Kuchmuch noted that he had received a call from Mr Meagher about Mr. X's condition at the time of Mr X's re-a~mission to the Hospital Mr. Meagher also made a note about that matter on Mr. X's chart, however there was no reference to .bioenergetic ~" therapy in that note. As previously noted, certain information about Mr. Meagher's actions came to the attention of the Employer in March; 19Q3. Mr. X approached Ms. M. Brennan. Ms. Brennan is acting director in the psychotherapy' unit and also carries out social work functions. Ms. Brennan testified that Mr. X told her aQout events that had taken place in November and Decemb~r, 1~92 when he was a resident of a group home. She testified that Mr. X told . her that Mr. Meagher had rubbed his stomach and that one of these incidents took place away from the group home, while Mr. X was parked with Mr."Meagher in his car. Mr. X advised Ms. Brennan that he was now beginning to realize that this was not therapy and was inappropriate. Mr. X also advised Ms. Brennan tpat Mr Meagher had asked him to use "slang" words- such as "cock" instead of penis in describing his sexual abuse and had asked him, to describe his sexual abuse in detail Mr X also reported that it was his understanding that there were similar incidents involving another patient, hereinafter referred to as Mr Y. i \ . 12 Mr. Y was interviewed and he referred to events i~volving Mr. Meagher which took place in 1991- Mr. Y indicated that he had advised Mr. Meagher that he did not like to be touched but that there was an occasion when Mr Meagher came to his apartment and suggested that he rub his stomach. Mr. Y also referred to Mr. Meagher using graphic language in relation to Mr. Y's past sexual abuse. ~ The incidents were investigated in accordance with the hospital's policy on patient abuse by staff. As would be expected, this policy provides that abuse of patients will not be - - tolerated and it sets out the procedures to be followed when there is an allegation of abuse. Mr. Kuchmuch was the person who advised Mr. Meagher of the allegation~. At that meeting, ,Mr. Kuchmuch advised Mr. Meagher that a patient had alleged that he had touched his stomach. That was the extent of tide allegations . made known to Mr. Meagher at that time. Mr.. Kuchmuch testified that Mr. Meagher immediately acknowledged that he had touched Mr. X on the stomach on at least three occasions. Mr. Kuchmuch also testified that Mr Meagher indicated that he was engaged i~ therapy and that the touch on the stomach related to the patient's pain being centred there, but the therapy was not specifically identified as bioenergetics at this time. To some extent, there was no dispute as to what transpired between Mr. Meagher and the two patients. Mr. X and Mr. Meagher I \ ( 13 became acquainted when Mr X was a patient at the Whitby psychiatric Hospital. Mr X's diagnosis was depression a~d personality disorder There was some dispute in the evidence as to precisely when they met, but it was. common:. ground that Mr Meagher was assigned as Mr X's social worker at or qround the time it was decided that Mr X would be transferred to a group home. The purpose of his transfer to a group home was to qllow Mr. X to stop using medication in order that he could r~turn to the psychotherapy unit of the institution to obtain treatment. Patients obtaining treatment on that unit must be off me~ication Mr. X testffied that he met Mr. Meagher for the first time at the hospital when Mr. Meagher took him to the gr~up home. In cross-examination, he denied that he met with Mr. Meagher prior to this time although when confronted with the record indicating two prior meetings he indicated that they could have been brief . meetings which he did not recall. Mr. X testified that at his first meeting with Mr. Meagher he told him that he did ,not like to be touched and that Mr. Meagher advised him he wo~ld not touch him. He testified that this conversation took place on the unit. Mr. 'x was ,directed to notes taken of his statement at Mr Meagher'S internal hearing at the hospital wherein he had indicated that he had made that statement to Mr'. Meagher in the car. Mr. X then testified that the statement might have been in the car, later that it might have been made twice and then that it was probably made twice He subsequently maintained that the \ \. ~ 14 statement was not made in the car but that it was made at the hospital. Mr. x testified that his discussions with Mr Meagher after his transfer centred on his recurring nigptmar~s with respect to his past sexual abuse. He testif~ed that Mr~ Meagher asked for details which he provided, after which he b~came very depressed and suicidal and returned to the institution.. According to Mr. X's testimony at his ,next meeting with Mr. Meagher he was again asked to focus on his sexual abuse and the incidents. He testified that Mr. Meagher asked him where he was experiencing physical pain and that he identified his stomach and genitals. According to Mr. X's evidence Mr. Meagher then reached out to his stomach, placed his hand outside of his shirt and moved it in a circular motion. Mr. X testified that at ~is ne~t meeting the focus, was on sexual abuse and again Mr. Meagher placed his hand - on his stomach. Mr. X testified that after this meeting he felt depressed and suicidal. He wished to return to the hospital but was told that there were no beds available at. the time. Mr. X testified that at the next meeting Mr. Meagher suggested that they talk in his car in order to avoid interruptions in the house. Mr. X testified that Mr. Meagher parked his car at the Scarborough Bluffs and asked him to again relate details of his sexual abuse. Accordin9 to Mr. X's testimony, Mr. Meagher again asked him tq use slang terms, rather \. ( i 15 than clinical terms, in deScribing those events. Mr. X testified that Mr Meagher reached over and started to rub his stomach again, placing his hand inside his shirt and unfastening the top button of his pants. He testified that~the massage took place over a period of about twenty minutes. Mr. X testified that after the meeting he returned to the STAT unit because, he felt depressed and suicidal Mr. X testified that he perceived Mr. Meagher's touch to be sexual in nature. However, at Mr. Meagher's pre-disciplinary meeting Mr. X acknowledged that there was nothing about the touch per se that was sexual, but stated that it triggered memories of past sexual abuse. Mr. X made no complaints to anyone ,at or around the time of the events. Mr. X testified that he and other patients, including ,Mr. Y, . were discussing staff members and Mr. Meagher's name was mentioned. Mr. X tesified that Mr. Y asked him if Mr. Meagher had ever touched him. Mr. X testified that he told Mr. Y that he did not want to discuss the matter. However, Mr. Y testified that Mr. X told him that Mr. Meagher had touched his stomach. According to Mr. Y, he told Mr. X that he would not let Mr. Meagher touch him and that Mr. Meagher was a "pervert". It was after this conversation that Mr. X spoke with Ms. Brennan. Ms. Brennan's record of her conversation with Mr. X i \ 16 indicates that Mr. Meagher continued to us~ "slang" words in spite of his protests. However, at the internal he~ring on April 20, 1993, Mr. X ingicated that he did not raise any objec;:tion to the use of this la~guage because he, felt uncomfortable ip ~aising this objection with Mr. Meagher. Mr. X testified that Mr. Meagher nev~r discussed the reason for ~he touching and pever mentioned the term bioenergetics to him. He denied in crO$S- ~ examination that the slang language was used at his suggestion. When asked in cross-examination to confirm that while he identified his genit~ls as the place where he was experiencing pain to Mr. Meagher, ,Mr. Meagher did not touch his geni taJ,.s, -- Mr. -- XiS response was "npt that I am aware of" and then indicated, that he did not remembe,r whetJ'ler ,Mr. Meagher had touched hi:s gen~ tals. He acknowledged that he had never blocked his earlier sexual abuse 'but stated that he would "possibly" have blocked a recollection of Mr. Meagher touchin%his genitals. - . A statement of claim dated August 24, 1994 in the name of" Mr. X and Mr. Y as plaintiffs, issued against Mr. Meagher and the Employer as defendants, was filed with the Board. In the statement of c;::laim it is alleged that Mr. Meagher engaged in fondling and rubbing Mr. X's genitals and groin are~, rubbinqand touching his body in a sexual manner, attempting to remQve his clothing, undoing his pants and attempting to lower them and making improper sexual advances. The statement of claim was issued in August, 1994, subsequent to both Mr X and Mr. Y giving I \ 17 evidence and accordingly, there was noop~ortunity for either witness to be questioned about the allegations it contains in the course of their evidence in this proceeding. Mr. Y was a patient of Whitby Psychiatric Hospital in the STAT ward between May 24 and June 24, 1991 where he was obtaining treatment for depression. He waS discharged against medical advice. Mr. Meagher was Mr. 'Y' s assigned socia-l worker while he was at the hospital. Mr. Y testified that during their meetings at the hospital Mr. Meagher raised the issue of sexual abuse in a way that he found inappropriate. He testified that Mr. Meagher _. asked him in a graphic way whether a family member had ,involved him in oral sex. Mr. Y testified that he asked Mr Meagher ,not to use that kind of language but that he continued to do so. It was common ground that subsequent to Mr. Y's discharge he was experiencing ongoing depression and felt that he needed . assistance. According to Mr. Y's evidence, he contacted Mr. Meagher one or two times. Mr. Y denied that he specifically asked Mr. Meagher to come to see him but .acknowldged that arrangements were made for Mr. Meagher to meet him at his apartment. This meeting took place about 9 00 p.m. Mr. Y testified that he and Mr. Meagher had some discussion about Mr. Y's condition and, according to Mr. Y's ~estimony, Mr. Meagher "tried to get me to come over and sit down so he could rub my stomach II . When asked if there was any discussion as to why Mr. Meagher wanted to touch him, Mr. Y testified that Mr. Meagher - I 18 told him that it would help him feel better. Mr. Y te13tified that his response was "no way" and that Mr. Mepgher did not attempt to touch him. Mr y ~estified that Mr. Meagher did not explain that touching him was part of bioenergetics or part of therapy'. Mr. Y testified that a friend of his came to visit and that Mr. Meagher ,left shortly after. Mr. Y acknowledged that Mr Meagher th~n spoke with, him for a while and ask~d him about ~ ,r matters such as whether he had eaten. In the statement of claim referred to apove, Mr. Y also alleges that Mr. Meagher fondled and rubbed hisgen~tals and groin area, rubbeq and touched his body in a sexual ~anner, attempted to remove his clothing, undid his pants and attempted to lower them and made improper sexual advances. According to Mr. Meagher's testimony, he had three me~tipgs with Mr.. X prior ~o Mr. X leaving the hosp~tal. He testified - that the first me~ting was with his supervisor, Mr. Smith, and Mr. X, on November 3, 19.93 . The second meeting was on November 5, 1993, with Mr. .Kuchmuch, himself and Mr. X. 'l;'hese meetings are confirmed by ,Mr. X's clinical record. Mr. Meagher testified that there was a subsequent brief meeting between himself and Mr. X, prior to Mr. X leaving the hospital. Mr. Meagher testified that there was not a lot of detail regarding Mr. X's circumstances conveyed to him in the meetings at the hospital, powever, he was advised by Mr. Smith that Mr. X I \ 19 had disclosed his past sexual abuse and that Mr Smith felt that Mr. x was re'adyto "work on" the matter. Mr. Meagher's evidence in this regard was corroborated by Mr. Smith at Mr Meagher's pre-disciplinary meeting. Mr Smith also indicated at that meeting that Mr. Meagher may be more 'knowledgable than h~ is in dealing with victims of sexual abuse. Mr. Meagher testified that at no time during the meeting at the hospital nor at any ti~e subsequent did Mr. X make any reference to a concern about being touched by men. Mr. Meagher testified that he drove Mr. X to the group home in Scarborough and after introducing him' to the residents and staff there was a short group meeting, after which he m~t with Mr. X individually. Mr. Meagher testified that -they tllkeg about Mr. X's goals and what they would be working on. Mr. Meagher testified that Mr. X told him that he wanted to get off - medications and to work on issues relating to his past history of sexual abuse. Mr. Meagher testified that he told Mr. X that coming to grips with his past sexual abuse would be difficult and that he could expect to be anxious and tearful. He test'if ied that he told him that'he would be able to assist him with techniques to relax himself and referred him to a document entitled "Twenty-four Stages of Growth for Survivors of Incest" He testified that he provided Mr. X with a copy of this document. The document does not relate in any way to bioenergetic therapy. \ 20 Meetings between social wor~ers and residents are held in the dining room of the group home. The dining room has glass doors and there are frequent interruptions because of other residents going to and from the kitchen. According to Mr. Meagher's evidence, at their next meeting he spoke with Mr. X about the details of his h,tstory of sexual abuse. Mr. Mea<;Jher testified that Mr. X was very upset and was paving difficulty ~ " expressing-his anger, pain and sadness. Mr. Meagher testified that Mr. X told him that he felt suicidal. Arrangements were made for Mr. X to return to the hospital. Mr. Meagher met with Mr. X again after his discharge from the hospital and return t9-the group home. Again, there was discussion about Mr. XiS past history of sexual abuse. Mr. Meagbertestified ~hat Mr. X asked him not to use clinical words in the discussion as h~ did not wish to have the experience , dignified by the use of clinical words. Mr. Meagher tef?tified that he complied with this request. He further testified that at this session he reassured Mr. X that he was in ~o way responsible for what ,had happened to him and that Mr. X seemed reassured. Mr. Meagher testified that at this session he taught Mr. X some deep breathing exercises to help him relax. According to Mr. Me,agher's evidence, it was at the next session that the topic of bioenergetic therapy was raised with Mr. X. He testified that Mr. X was experiencing nightmares 21 relating to his past sexual abuse Mr. Meagher testified that he felt that bioenergetic therapy might be of assistance to Mr~ X and he told Mr. X about it. According to Mr. Meagher's testimony, he specifically referred to it as bioenergetic therapy and explained that it would involve touching his body to assist him in unblocking his feelings Mr. Meagher testified that he also explained to Mr. X that he might perceive the touch as sexual abuse and told him that the therapy would be conducted at his direction. According to Mr. Meagher's testimony, Mr. X. consented to the therapy. Mr. Meagher testified that Mr. X identified his stomach as an area where he felt pain and he then - asked Mr. X for his consent to touch him there. Mr. X consented and Mr. Meagher asked him to undo his belt in order that his stomach area would be unrestricted. Mr. Meagher testified that he then massaged Mr. X's stomach area for a period which he estimated to be five to nine minutes. They were interrupted when . ~ residents of the home came through the dining room and on those occasions Mr. Meagher stopped massaging Mr. X's stomach. Mr. Meagher testified that upon commencing the massage and at the end of the session he asked Mr. X if he was comfortable with the touch. Mr. Meagher testified that Mr. X told him that he was. Mr. Meagher testified that he suggested that their next session take place in his car so that they would not be interrupted and that Mr. X concurred with this suggestion According to Mr. Meagher's testimony, the next session with I ( 22 Mr. X took place in his car, parked on a residential street about four blocks away from the group home. Mr Meagher testified that the location was cloE?e to, but not at, the Scarborough Bluffs. He testified that ,it took place at 3.30 or 4:00 p~m. and that there were people in the area. He testified that they a9a~n discussed Mr. .X/s nightmares and strategie~ for dealing with them. Mr. Meagher testified that h~ again, asked for consent to engage in massage. Mr. X consented and Meagh~r again massaged Mr. X's stomach. As previously noted, Mr. X testified that there was one occasion when Mr. Meagher rubbed his stomach in the car. Mr. Meagher!s evidence, however, was that there was a second session in the car, at his next meeting with Mr. X. According to Mr. Meagher's evidence, the sa~e issues were discussed, he raised the issue of massage, and Mr., X consented to it. Mr. Meagher denied , that he undid the button of Mr. X's pants on either of these occasions. He testifie~ that his recollect~on was that he asked Mr. X to undo his button so that his stomach would be exposed in order that he could massage it. Mr. Meagher testified that he felt that the therapy was assisting Mr~ x. He testified that at the time of their second meeting in the car Mr. X told him that he was no longer experiencing nightmares. Mr. Meagher testified that on the next occasion that they met, Mr. X told him that his nightmares had returned He \ 23 testified that Mr Meagher told him that he had undergone a medical examination which had included a rectal examination and had brought back his nightmares According to Mr. Meagher, Mr X I identified his genitals as ~n area where he was experiencing pain. Mr. Meagher testified that he told Mr X that he would never touch him there. He testified that he did not engage in ~ any bioenergetic therapy at this session because he did not feel that the circumstances were appropriate to do so He took Mr. X to an appointment he had with a psychiatrist Mr~' Meagher testified that after the appointment Mr X seemed anxious and he indicated that he wished to return to the hospital. The next day, Mr. X told Mr. Meagher that he felt suicidal and Mr. Meagher took him back to the hospital. Mr. Meagher testified that he did not feel that the therapy that he had been providing was the cause of Mr. X feeling suicidal. He testified that "he felt that the therapy that he had provided was of benefit to Mr. X but that Mr. X required more intensive therapy. Mr. Meagher testified that he saw Mr X about six weeks later at the hospital and that Mr. X thanked him for the assistance that he had'provided to him. Mr. Meagher acknowledged that he did not speak to his supervisor about his use of bioenergetic therapy. He testified that he did not usually discuss specific details of his treatment with a supervisor He acknowledged, however, that he should have discussed the practice of bioenergetics with his supervisor Mr Meagher also acknowledged that his prior experience 'in which \ ( 24 criminal charges were laid as a result of engaging in bioenergetic therapy elsewhere alerted him to the dangers of this kind of therapy He testified that although he felt that the therapy was beneficial to Mr. X, he would never do it again. Mr. Meagher testified that he recognized that he should have informed another health profes~ional about the nqture ~nd effects of the therapy that he had been providing to Mr. X with respeqt t9 Mr. Y, Mr. Meagher testified that he first came to know Mr. Y when Mr. Y was an inpatient at the hospital in May, 1991. There was some suggestion in the course of cross- examination of the Employer's witnesses that Mr. Y had not disclosed past sexual abuse while he was in the Hospital. However, in the course of his evidence Mr. ~eagher testified that he was "not sure" whether Mr. Y had disclosed the fact that he had been victim of sexual abu~e while he was an inpatient. In . - cross-examination, Mr. Meagher was shown a copy of Mr. Y's chart, which indicated ,that he had disclosed past sexual abuse by a family member. Mr. Meagher testified that he was aware that Mr. Y did not like to be touched by men as Mr. Y had advised him of that on one occasion when he had put his arm around him. Mr. Y discharged himself from the institution against medical advice. Mr. Meagher testified that after Mr. Y's discharge, Mr. Y called him on three occasions and told him that he wanted to see him. Mr. Meagher advised Mr. Y that he should \ 25 see someone from outpatients but Mr Y told him ~hat he wanted to see him Mr Meagher testified .that he finally agreed to see Mr Y on one occasion only, on the condition that Mr,. Ywould make an appointment with the outpatient department. Mr. Meagher arranged to meet Mr. Y around 9 00 p.m. at his home, after finishing work in his other position, the office of which was in the area of Mr. Y's residence. Mr. Meagher testified that he has v;isited many ~ patients in their homes in the course of carrying out, duties- as a social worker, including patients of the Whitby psychiatric Hospital. Mr. Meagher testified that after exchanging pleasantries with Mr. Y he asked him what he wanted to talk about. He testified that Mr. Y was not able to express'himself but he identified feelings of fearfulness and anxiousnes's. Mr. Meagher testified that he then tried to get Mr. y to "open up". He testified that he asked Mr. Y what part of his body reacted when he thought about the events and that Mr. Y identified the area as I his stomach. Mr. Meagher testified that he then told Mr. Y about bioenergetics and described it as touching that disarms muscles to allow a person to get in touch with feelings. Mr. Meagher said that the therapy would involve touching his stomach and Mr. Y advised him that he did not wish him to do so. Mr. Meagher testified that he did not pursue the matter Mr. Meagher testified that he then brought up the subject of 26 sexual abuse, because he thought thi.s might be the area that Mr Y was unable to talk about. Mr. M.eagher testified that when he brought up the topic Mr. Y appeared to be interested in Mr. Meagher pursuing this issue. He then asked him about sexual involvement with his brother. Mr Meagher testified that he could not recall Mr. Y's verbal response but that again his sense was that Mr. Y was interested in having this issue ,pursued. _r Mr. Meagher acknowledged using the language Mr. Y referred to and further acknowledged that he used it on his own initiative. He testified that h~ expressed himself in this manner because he felt that it would assist Mr. Y in expressing what was troubling him. Mr. Meagher testified that althoug~ the record indicated that Mr. Y had already disclosed past .sexual abuse, a fact that he would have been aware of at the time, there are many levels of disclosure and Mr. Y may have wished to disclose additional information. , - Mr. Me~gher testified that he assessed Mr. Y's mental status and he did not consider him to be suicidal. He confirmed with Mr. Y that he had made an appointment through outpatients. Mr. Meagher testi~ied that he attempted to contact a nurse in outpatients the following day to advise of (his discussions with Mr. '1.. He testified that he was. unable to reach her and because of his involvement in other matters did not pursue attempting to reach her. Mr. Meagher testified that in retrospect, it would have been better for him to simply have talked to Mr Y, rather ! I \ 27 than suggesting bioenergetic ,therapy Mr R. Pepler, as previously noted, is the person identified by Mr. Meagher as the source of some of his information about bioenergetics and body work. Mr. Pepler obtained training in bioenergetic therapy at what was then known .as theInsti~ute of Bioenergetic Analysis, now the Toronto Society for 'Bioenergetic " Analysis. He completed two years of a four year'program. Mr. Pepler also trained in therapy which included body ~ork at the Bayview Therapy Centre between 1983 and 1984. He a~so obtained training in London England in social phenomenology Mr. Pepler obtained a M.S.W. in 1986. After graduating he has practised psychothera~y on a part-time basis, concluding in about 1991. One of the areas of Mr. Pepler'S interest, and the area of his master's thesis, is body work, including bioenergetics. Mr,. Peplar testified that' touching, including massage, was part of - his training in bioenergetics. He has utilzed bioenergetic techniques in his private practice as a therapist. -' Mr. Pepler has been employed at Whitby Psychiatric Hospital as a social worker since 1988. He works in two different wards of the hospital. Mr Pepler testified that on the psycho,therapy unit he and another employee, who is trained as a psychodramatist and a nurse, periodically carry out a seminar program to assist patients in dealing with their emotions. The program includes teaching patients exercises which are intended to help them - - \ 28 express their feelings more openly Mr. pepler testified that these exercises included massage techniques which involve touching patients. Mr. Peplar also testified that the psychodramatist's weekly sessions for patients on the psychotherapy unit include body work" in particular, touching patients on the pressure point ~ _r areas ,of their bodies. Ms. Brennan, who as previously noted is the acting director of the psychotherapy unit, acknowledged that touch may be used by the psychodramatist, Qut ~tated tQat there .j would be consent and documentation in such instances. ---'.~ Mr. Pepler testified that based on his experience with victims of sexual abuse, body work, includin9 massage, can be useful and helpful to patients. Mr. Pepler testified that he openly engaged in massage of patients on the psychotherapy unit ~ but ,he received a "indirect message" from his unit director that he "didn't think much" of bioenergetics. As well, in 1991 there was a specific discussion regarding use of massage and a decision was made that massage would not be provided by the staff. The unit minutes of March 19, 1991 indicate tpat: "', It was decided that massage would not be considered a function of staff and that staff that had an .interest in this area would educate patients in doing rather than directly provide it. This decision r~lated to the psychotherapy unit, The minutes would not, in the ordinary course, come to a person in Mr I 29 Meagher's position Mr. Pepler confirmed Mr Meagher's evidence. that he had presented a seminar to staff regarding bioenergeti9s, that he and Mr. Meagher had a number of discussions about bioenergetics and that he had provided him with some written material on the topic. He also confirmed that-he demonstrated some body work techniques -- He testified that he was unable to remember exactly which ones he had demonstrated but he believed that one did involve touching the stomach. Mr. Pepler testified that at the time that he was providing this information to Mr. Meagher massage therapy was - being used on the psychotherapy' unit and by the psychodramatist on an individualbasis~ He testified that he had no recollection of telling Mr. Meagher about the decision not to provide massage to patients on the psychotherapy unit. Ms. Crawford referred Mr. Pepler to instances in the minutes of the uni~ wherej.n , discussions as to appropriate modalities of treat~ent were raised and decisions made. ,Mr. Pepler agreed that there were ~nstances in which that did take place. He testified, however, that he does not seek approval for all therapies used with all patients. Ms Sadana described her familiarity with bioenergetics as "extremely limited", however, she testified that she did not regard it as a "mainstream therapy" for social workers. She was of the view that it was not an appropriate therapy to be undertaken on a short term basis Ms Sad~na was n~t aware of it 30 being practised elsewhere in the' hospital. In cross-examination, Ms. Sadana indicated that she knew that bioenergetics was "talked about in the clinical community" but stated that she had not read any literature or attended any conferences dealing with this particular form of therap~. Ms. Sadana testified that she considered the use of slang language by a social worker to be inappropriate. Mr. 'Ballantyne, who is a social worker, testified that he felt that, it was inappropriate for a social worker to use slang language. He acknowledged, however, that there were some occasions where it may be appropriate. Mr. Ballantyne testified that such occasions would be rare and would require more than simply a request from a patient to use such language. Ms. Brennan also testified that she considered the use o~ such language by a social worker to be inappropriate. However, she acknowledged that she herself has had a request from a patient who is a victim of past sexual abuse, to refrain from the u~e of - clinical language because the use of clinical words were not appropriate to ~xpress the patient's experience. The Board heard evidence from three persons with expertise in social work from outside the institution, two persons with a partiCUlar knowledge of bioenergetics. Ms. T. Firsten testified on behalf of the Employer. Ms. Firsten is a social worker. Her-particular area of interest and experience is/in the area of boundaries in therapeutic j i \ 31 relationships ~er most recent endeavour has been the organization of a conference dealtngwith sexual misconduct by health professionals, psychotherapists and clergy. I Ms Firsten gave evidence regarding the standards of practice of social workers. She testified that charting interactions with clients was a basic obligation. She also emphasized 'the importance of pacing in a therapeutic relationship and referred to the vulnerability of clients with a past history of sexual abuse. Ms. Firsten indicated that because of this vulnerability, extreme caution must be utilized in connection with touch as a part of therapy. Based on her review of the information provided by Mr. X and Mr. Y to the hospital, Ms. Firsten expressed the' v~ew that the suggestion of touch in the case of Mr. Y and the touch in the case of Mr. X were inappropriate actions on the part of Mr. Meagher and characterized them as "boundary violations,". Ms. Firsten also referred to an obligation on the part of' a social . . J worker to be fully competent in relation to any modality of' treatment prior to engaging in it. It was Ms. Firsten's understanding that Mr. Meagher had attended only two lectures on bioenergetics and in her view this was not sufficient training to engage in this kind of therapy. Ms. Firsten acknowledged that there were no precise standards with respect to this matter She has not studied bioenergetics. However, she was of the opinion that Mr. Meagher was not competent to engage in bioenergetic , therapy and that his decision to do so was not in accordance with the standards of practice of social work. She was also of the ( . 32 view that his decision to utilize touch fell below standard with respect to, the pacing of therapy Ms Firsten testified that the use of slang language in a therapeutic r~lationship may be inCiPpropriate, if it constitutes a boundary violation. She acknowl~dged, however, that whether such language is i~appropriate or a boundary violation depends on the particular context. ~ ~ Ms. A. Fullerton also testified on behalf of the Employer. Ms. Fullerton is the director of the Toronto society for Bioenergetic Analysis. Ms. Fullerton's bioenergetic training consisted of one week a month for ten months over five years. She ~id a number of hours work under the supervision of bio- energetic practitioners, who were psychiatrists, psychologists and social workers. Th~ Toronto Society f~r Bioenergetic Analysis is affiliated with an organizatio~ in New York city - - called the International Institute for Bioenergetic Analys~s which determines the training to be provided by the Toronto society for Bioenergetic Analysis. On the issue of touch in b~oenergetic analysis,Ms. Fullerton testified that she personally takes "quite a long time" before she will touch clients, probably a minimum of six months. M~. Fullerton testified that there are special considerations with respect to tOUChing someone who has been sexually abused, as any touch could be traumatic for them Ms Fullerton testified that j ( 33 the rubbing of a patient's stomach "~s not bioenergetics a~ I know it". She testified that she may ask a client' to place his or her own hand on the stomach but tpat she would not ~lace her own hand in that area. Ms. Fullerton acknowledged in cross- examination that Mr. A. Degraaff was a person with sqme expertise in bioenergetics. Mr. Degraaff was o~e of the pe~~ons who provided training to Ms. Fullertop w~en she was obtaining ber certification in the field. Mr. A. Degraaff testified on behalf of the Union. Mr. 'Degraa~f's background includes three ye~~s of training at the University of Amsterdam, after which he obtained a pre-doctoral degree in clinical pastoral counselling. He completed a five year training program at the Bioenergetic Psychot~erapy Institute in Toronto, a predecessor of the organizati~n with which ~s. Fullerton is associated. Mr. Degraaff completed a one year - ~ internship at the Toronto Institute for Human Relations. Mr. Degraaff taught for four years at the undergraduate level in psychology and education. He also taught for ten years at the Institute for Christian Studies in Toronto, a graduate program affiliated with the University of Toronto. At the time that he J gave evidence in these proceedings Mr. Degraaff was engaged in private practice as a therapist and was involved in teaChing therapists at Spadina Therapy Centre. Mr. Degraaff testified that in his practice, bioenergetic - \ , \ 34 therapy is one of a number of therapeutic approaches that he may employ. Mr. Degraaff noted that Mr W Reich, the originator 9f bioenergetic therapy, described tension in the body as "body armour" . Mr. Degraaff testified that the stomach, shoulders and neck areas are places where a person holds tension and assisting people to relax in those areas is a way of assisting them therapeutically. Mr Degraaff emphasized that it is important to ,- ensure that a client is comfortable with and consents to any kind of therapy, including touch, before it commences. Mr. Degraaff testified that he utilizes bioenergetic therapy of. at two levels. At the first level he utilizes it to bring a level of relaxation, to allow a client. to get "in touch" with him or herself. A~ another level, once he has come to know the client, he may utilize bioenergetic therapy on an intensive basis. Mr. Degraaff testified that he utilizes ~assage at both ~ levels. He testified that at the first level to assist with relaxation he may touch the patient's stomach to provide the patient with a signal to relax in that area of the body. He testified that touch, including massage, is a common practice in utilizing bioenergetics in such a situation. He testified that he would utilize bioenergetic therapy on a, patient with a history of sexual abuse. Mr. Degraaff emphasized the importance of consent in such situations and ensuring that the client feels comfortable with the therapy. With respect to the matter of bioehergetic therapy taking place in a parked car, Mr. Degraff \ 35 was of the view that privacy was of more consequence than the location of the therapy Since the incidents giving rise to Mr Meagher's discharge, a specific and detailed policy has been promulgated by the hospital in relation to the therapy of ,sexually abused c'lients. This policy includes the following provisions under the heaping ~ "Suggestions for 'Practice": 2) If the client does not disclose sexual abuse, but you suSpect it, or if client does not want to discuss disclosed abuse, you can offer general information and edUcation about sexual abus~, examples of how abused people may feel, etc. This can help to normalize client's feelings for them and will let them know that you are comfortable hearing about the sexual abuse, when they are ready to discuss it. 3) Be prepared to hear specific and graphic details. . . . 8) Do this therapy in a clinical setting only (e.g., , office, hospital grounds), as this places appropriate boundaries ,and context to the work. 9) Do not initiate any physical touch at all with any client with whom you do not have specific consent to do so, and a trusting relationship. Be aware of whose need it is to touch in assessment/therapy. 10) Use extreme caution and good judgment in 9ffering any physical comfort in the context of assessment/ therapy . . . 13) Document content of therapy sessions, including clients reactions during and after sessions, and document any physical contact between therapistl client, as well as context in which it occurred. . 16) Immediately document any physical contact between \ \ \ 36 therapist and client and the context in which this occurred. . .. 18) As in all cases, be attuned to transference/counter- transference issues With sexually abused clients, dependency and fear of abandonment can be a major clinical feature. . As previously noted, while it was the Employer's initial , position that Mr. Meagher had engaged in ~exual advances, this ,r was not the position ultimately taken. The essence of the Employer's position in final argUment was that in a number of respects>Mr. Meagher failed to meet the stanqards of a social worker and that the failure was of such seriousness and of such a fundamental nature that the employment relationship is no .longer viable. Mr. Wright argued that there had been a change of position on the part of the Employer in the course of these proceedings, a submission with which Ms. Crawford took issue. It is unnecessary to address this matter specifically, as we agree ~ with Ms. Crawford's ,submission t~at the allegations upon which the Employer ultimately relied in argument are encompassed in the allegations set out in the letter of discharge. In her submissions, Ms. Crawford argued that Mr Meagher failed to meet the standards of a professional social worker in such 'a fundamental way that there w~s just cause for dismissal. In Mr. Wright's. submission, the Employer's case against Mr. Meagher is really one of non-culpable deficiency Mr. Wright argued that to uphold dismissal on that basis the Employer must \ ( C\ 37 fulfil the criteria set out in Re Edith Cavell Private Hospital and Hospital Employees Union. Local 180 (1982) 6 LAC ( 3d) 229 (Hope) at p. 233 An employer who seeks to dismiss an employee for a non-culpable deficiency in job performance must meet certain cr~teria: (a) The employer must define the level ,of job performance requir~d . ,~ ,r (b) The employer must establish that the standard expected was communicated to the employee. (c) The employer must show it gave reasonable supervision and instruction, to the employee and afforded the employee a reasonable opportunity to meet the standard. (d) The employer must establish an inability on the part of the employee to meet the requisite standard to an extent that renders her incapable of performing the job and that reasonable, efforts were made to find alternate employment within the co~petence of the employee. (e) The employer must disclose that reasonable warnings were given to the employee that a failure ~ to meet the standard could result in dismissal. While we agree with the proposition that an employee's actions are properly viewed in the context of the standards of performance defined and communicated to employees, it is also our view that employers are entitled to expect that professional employees coming into a position with academic qualifications and training operate within the standards of their profession. The case of Edith Cavell involved a kitchen employee. Clearly, there must be differing levels of standards of performance that an employer is entitled to expect, depending on the nature of the training and the profession of the employee \ I \ \ 38 Mr Meagher has acknowledged that he should have discussed engaging in the practice of bioenergetics with his supervisor. He was clearly wrong in failing to do so However, the context of his actions is important in relation to considerations of discipline. We agree with Ms. Crawford's submission that part of that context is that Mr. Meagher was a professional social - ~ worker, charged with the responsibilty of dealing with vulnerable clients in an institutional setting. As well, however, unlike the situation that presently exists, there was no written policy dealing with this kind of therapy. Accordingly, in engaging in bioenergetic therapy, Mr. Meagher was not acting in contravention of any clearly defined policy of the institution. As established in the cross-examination of Mr Pepler, there are matters of practice that are discussed with supervisors However, it was not established that there is no scope for independent judgment - and discretion with respect to therapeutic approaches. While the evidence overall indicated that bioenergetic therapy is not a mainstream therapy, Mr. Ballantyne, Ms. Firsten and Ms. Sadana all acknowled~ed that that it is an approach accepted by some members of the' social work profession. As in many areas, it is apparent that within the therapeutic field there are different theories and approaches to clinical problems. There was a seminar on this topic as part of an educational program at Whitby Psychiatric Hospital. There was no suggestion from the evidence that there was an indication at the seminar that the institution specifically supported bioenergetic therapy, and indeed, it was \ ( 39 ultimately decided that therapy involving massage would, not be used on the psychotherapy unit. However, bioen~rgetic therapy, or at least aspects of it, has been practiced to some extent in the institution with respect to this latter point, we note that there was no suggestion to Mr. Meagher in the course, of his evidence that he was made aware of the. restrictions on massage implemented on the psychotherapy unit It is the Employer's position, however, that any impression that Mr. Meagher might have had with respect -to the legitimacy of the practice of bioenergetics at the institution Mas specifically addressed by Ms. Sad ana and that following that 'conver~ation Mr. Meagher was on clear notice that bioenergetics was not an acceptable therapeutic approach at the Whitby' psychiatric Hospital. As previously indicated, Mr. Meagher testified that he did not recall any such statement on the part of Ms. Sadana. Ms. . . Sadana was unable to recall precisely what she said,. On this evidence we are unable to conclude that Mr. Meagher was specifically directed not to engage in the practice of bioenergetics with patients of the institution. At issue is whether Mr. Meagher had sufficient knowledge of the principles of bioenergetics to competently engage in it As previously noted, Ms. Firsten was of the view that he did not have sufficient knowledge to do so. However, Mr Meagher'S background in bioenergetic therapy was more extensive than Ms. ( 40 Firsten understood it to be when she expressed tha~ opinion The evidence of Mr. Degraaff indicated that there are t\'{o levels at which bioenergetic therapy can be practiced and it is apparent that Mr. Meagher was engaging in bioenergetic therapy at the first level. As Ms. Firsten indicated, there are no absolute standards with respect to competence to practice such therapy. On the evidence before us and given the extent of its utilization, we are unable to conclude that in general, Mr. Meagher lacked sl,lfficient background in bioener,getic therapy to competently utilize it. The preponderance of the evidence_ before us supports the conclusion that the massage that Mr. Meagher engaged in was a bipene~getic technique. Whil;e Ms. Fullerton's evidence was to the contrary, Mr. Degraaff's testimony, supported '~ < by the evidence of Mr. Pepler, was that massage, including massage of the stomach area, was a technique utilized in bioenerqetic therapy. Mr. D~graaff has consider~bly more . academic and clinical experience than Ms. Fullerton and we therefore' prefer his evidence with respect to this matter. Related -to the foregoing issue is the matter of Mr. Meagher's decision to utilize this therapy, or, in the case of Mr. Y, to attempt to utilize .this therapy, in the particular circumstances in which he did. with respect to Mr. X, there was some suggestion that he should not have been engaging in therapy at all, given Mr. X's placement in the group home. However, the evidence established that Mr. Smith anticipated that Mr. Meagher ~ ( 41 would be. engaging- in therapy with 'Mr ~. relating to .his past sexual abuse Moreover, Mr Meagher's decision to use tpis type of therapy with Mr. X does not, as suggested in the evidence of the Employer's witnesses, necessarily indicate that ~r Meagher had undertaken, extensive therapy. As previously noted, Mr. Degraaff testified that bioenergetic techniques m~y be used for therapy that is not intensive, but is essentially as an aid for ~ relaxation. It is apparent that thip is the le~el at which Mr. Meagher utilized bioenergetic techniques with Mr. X. It is also apparent that Mr. Meagher was not atte~pting to engage in intensive therapy with Mr. Y. While there was some suggestion in the evidence of the Employer's witnesses that touch is not appropri~te in the therapy of victims of past sexual abuse, the evidence of the Employer's expert, Ms. Firsten, centred on consent of the client with the , obigation on the part of the ther~pist to recognize the special vulnerability of these clients. The Employer's recently promulgated policy takes the same approach. While the po~icy certainly does not authorize bioenergetic therapy or massage, it does not prohibit touch. The policy contemplates that there may be touch between a therapist and client, but emphasizes the importance of consent. The Union did not dispute the necessity of obtaining consent and, indeeq, acknowledged that consent is an essential aspect of any kind of therapy. Mr. Meagher acknowledged his obligation to obtain consent prior to engaging -- ., ( 42 in bioenergetic therapy. The significant i~sue is wh~ther or not he did. There was a dispute between Mr. X and Mr. Meagher about whether or not there was an explanation of the treatment to be g1ven and whether there was consent to' that treatment. We prefer Mr. Meagher's evidence in this regard to th~ evidence of Mr. X. ,r In our assessment, Mr. Meagher was a highly credible witness. Of I particular significance in our assessment ,is Mr. Meagh~r's testimony that there were two sessions with Mr. X in the car. Mr. X alleged only one session in the car' anq there would, appear to be no reason for Mr. Meagher to have acknowledged a second, except for a desire to tell the whole truth about the events. Mr. X was inconsistent in his evidence with respect to the timing of his alleged advice to Mr. Meagher that he did not like to be touched. Most fundamental, however, in terms of our ~ssessment of - Mr. Xis credibility is that the statement, of claim issued on his behalf contains allegations that are entirely inconsistent with the evidence he gave before us. This same consideration applies in relation to Mr. Y's evidence The issue of whether Mr. X told Mr. Meagher that he did not like to be touched is relevant to the issue of consent. Given Mr. X's contradictory evidence as to when he made this statement to Mr. Meagher and our general assessment of the credibility of these two witnesses, we prefer Mr. Meagher's evidence on this point Moreover, given that it was clear that he sought consent from Mr. Y, it is likely that he J .. ( i 43 would have sought consent from Mr. X as well Accordingly, we accept that Mr. Meagher explained the nature of bioenergetic therapy to Mr. X and that Mr. X consented to the ~perapy On the issue of whether Mr. Meagher provided Mr Y with information about the therapy other than simply indicating that he wished to rub his stomach and that it would make him feel better, we accept Mr. Meagher's evidence on this point Accordingly, in relation -, to Mr. Y, it is our conclusion that Mr Meagher acted appropriately in establishing a foundation for informed consent Mr. Y did not give consent and Mr. Meagher, apprqpriately, did not pursue the matter. We turn now to the issue of the language that Mr. Meagher employed. For the reasons outlined previously, we found Mr. Meagher to be ~ more reliable witness than Mr. X and we prefer his evidence to that of Mr. X with respect to who initiated the - . use of non-clinical terms. Both Ms. Firsten and Mr. Ballantyne acknowledged that the use of non-clinical terms may be appropriate in some instances in a therapeutic relationship. While it may have been more appropriate for Mr Meagher to encourage the use of clinical lang~age with Mr. X" we are unable to conclude that his actions in this regard are properly viewed as culpable. In the case of Mr Y, Mr Meagher acknowledged that he iinititated the use of non-clinical language. Th~re was a { ( 44 conflict in the evidence as to when this language was utilized For the reasons outlined previously, we prefer the evidence of Mr Meagher to that of Mr Y and it is our conclusion that Mr. Meagher utilzed non-clinical language when he was at Mr. Y's apartment. We accept that in doing so, Mr. Meagher was attempting to assist Mr. Y with his difficulties in expressing ,~ himself. While Mr. Meagher was perhaps overly blunt, his motive was clearly therapeutic. We note that the Employer's policy established subsequent to the events in issue here indicates that therapists are to be prepared for the use of graphic language when dealing with victims of past sexual abuse. The policy also contemplates actions on the part of the therapist to assist the client in knowing that the therapist is comfortable in hearing about the sexual abuse. While the policy does not suggest that the therapist is to initiate the use of such language, it does contemplate that graphic language may occur in therapy. , As previously noted, one of the concerns of the Employer in relation to Mr. Meagher's contacts with both ,Mr. X and Mr. Y related to the pacing of the therapy Mr. Meagher was clearly somewhat forceful in attempting to get Mr. Y to come to the point of his concerns. However, his actions must be viewed ~n context. Mr. Y persisted in getting Mr. Meagher to come .to see him. and Mr. Meagher had ultimately agreed to do so He attended at Mr. Y's home, late in the day, at which point Mr Y was not forthcoming about what he wished to speak to him about It is understandable - \ , 45 that Mr Meagher would have wanted to make his visit productive in terms of getting to the heart of the matter. While w~ accept the' Employer's position that there are mqre suita~le places for therapy, in our view, Mr Meagher's sU9gestion of massage therapy was an attempt to assist Mr. Y. The better approach, as Mr Meagher acknowledged, would have been toh~ve simply listened to Mr. Y. In relation to Mr. X, a parked car is clearly not the most suitable place' for therapy. However, in our view, Mr. Meagher's decision to engage in therapy there was cle~rly motivated by logistical concerns associated with t~e interruptions in the group home. with respect to the issue of pacing in relation to the treatment of Mr. X, our conclusions that the bioenergetic therapy was explained to Mr. X, that it was initiated ,only after a number I of meetings and that it was utilized not as intensive therapy but ~ as aid to assist him in relaxing, compel ~s to conclude that Mr. Meagher was sensitive to the issues of pacing in his dealings with Mr. x. In assessing this situation we have be~n mindful of the fact that there are many circumstances in which therapeutic approaches may well prove to be ineffective for reasons that cannot always be attributable to the particUlar choice of therapy. It was apparent from the evidence before us that transference, which may result in hpstility to the therapist, is not an uncommon feature of therapeutic relationships \ ( . 46 Mr. Meagher's circumstances arose from a desire to assist his clients therapeutically which was not sufficiently tempered by adherence to the necessary protocol in a;ninstitutional environment. In failing to fully document his treatment of his clients and failing to discuss the utilization of bioenergetic therapy with his supervisors, Mr Meagher left his actions open to misinterpretation, a scenario which he had faced previously as .~ ~ a result of practicing bioenergetic therapy in a different environment. The possibility of such a misint~rpretation is a significant concern for an institution such as the Whitby psychiatric Hospital. Social workers, like other health care professionals, must be held to the high standards of their profession. Mr. Meagher was in breach of a fundamental obligation ofa health care professional to record and report. His failure to consu~t with - his supervisor about the use of bioenergetic therapy when he knew of ~ts potential for being construed as sexual assault was a significant failing on his part. As Ms. Crawford emphasized, his ~eniority is. not extensive. However, his record .is clear and his appraisals are extremely positive. There are other mitigating circumstances which we have referred to in the course of this decision. Mr. Meagher has acknowledgedcthat he should have conducted himself differently' and we are confident that he is capable of responding to the Employer's concerns about his actions in connection with this matter While we accept that the ( . 47 circumstances of this case properly give rise to discipline, it is our view that the ultimate sanction of discharge is clearly not appropriate In dealing with the issue of penalty; we are mindful of the fact that principles of progressive discipline contemplate that the disciplinary process will ordinarily commence with ,'" -- the most mild form of discipline, a letter of warning. However, the circumstances of a situation may indicate that a more severe penalty is appropriate. In our view, those circumstances exist in the case before us and Mr. Meagher's actions merit a significant suspension. It is our conclusion that a suspension of one month, that is, twenty working days, is an appropriate penalty, having regard to all of the circumstances of this case. Accordingly, a letter of suspension reflecting the findings . of this Board is to be substituted for' the letter of dismissal. Mr. Meagher is to be reinstated to his former position with full seniority but without compensation for the twenty day period of suspension. In all other respects he is to be made whole. The Board will retain jurisdiction to deal with any issues of compensation or any other difficulties which the parties may I . , 48 experience in. implementing this award Dated at Toronto, this 27th day of April, 1995. , ~~~; ji:~rson ,r ~ - M. Lyons - Hember_. (. . "I Dissent" (dissent to follow) D. Clark - Member - .. - ~ DISSENT iA GSB #757/93 OPSEU (,MEAGHER) and The Crown in Right of Ontario (Ministry of Health) I have read 'the majority decision and, with 'respect, I dissent. \ The majority of the panel concluded that thegrievor' should only receive a twenty day suspens'ion I disagree. In my opinion, the Employer sufficiently demonstrated that the grievor's conduct, at best, fell so far below the acceptable standards for a Social Worker that discharge was the approp~iate penalty I As in any case where there is Qonflicting evidence, credibility of the witnesses becomes a critical factor in arriving ata decision In the award the majority went into great detail explaining why they preferred the evidence of the grievor when it conflicted with the evidence of Mr X and Mr y The majority also explained their reasons why they arrived at cerotain conclusions when examining the evidence of some of the Employer's witnesses against the evidence of some of the Union's witnesses This member, with respect ,( disagrees with many of the conclusions reached by the majority Specifically, - 2 - 'i: this member does not agree with the following conclusions 1. The grievor had sufficient knowledge of the principles of bioenergetic therapy to competently engage in it, 2. The grievor was not specifically directed not to engage in the practice of bioenergetics with patients "'"" of the institution, 3. A parke4 car was not the most suitable place for therapy but the grievor's decision to engage in the therapy was motivated by logistic concerns associated with interruptions in the group home, and 4 The grievor was sensitive to the issues of pacing in I' his dealings with Mr. x. 1 The grievor's "training" in bioenergetic therapy consisted of the following 1. Attending two one hour lectures by a child abuse consultant, Mr. Fair; 2 Discussions with Mr Fair after the lectures, 3. Reading a~ticles and books; 4. A two hour seminar by a fellow social worker, Mr Pepler, 5. Ongoing discussions with Mr. .Pepler about bioenergetic therapy and techniques, 6 Demonstrations by Mr. Pepler of a number of techniques, including massage of the stomach area; v 7. Reading Bioenergetics by Dr. Lowen, a psychiatrist, and 8. Reading ,other texts on bioenergics. I r;.. t - 3 - 3'; One text referred to massage as pa:rt of bioenergetic therapy The panel, however, was not directed to a specific reference to stomach massage Mr Pepler only completed two years of a four year program for certification as a bioenergetic therapist. His thesis dealt, in part, with bioenergetics The grievor obtained some of his knowledge about bioenergetics from Mr Pepler During the grievor's discussions with Mr Pepler about bioenergetics, not once did he mention the fact he was employing this therapy with Mr X and Mr Y The grievor was dealing with two extremely vulnerable clients. Mr. X's diagnosis was depression and personality disorder He had been a victim of past sexual abuse Mr y had been treated for depression and he too had been the victim( of past sexual abuse. The grievor testified that he even told Mr X that he might perceive the grievor's touching as sexual abuse When dealing with this type of client and when employing the~apy which was not mainstream, one would hope, if not expect, the therapist to be highly trained in this type of therapy In the opinion of this member, the grievor, by attending some lectures and seminars and by reading about it, was not sufficiently trained to engage in this ttlerapy given the vulnerability of his clients r --~ " - 4 - ~ It is not as if the grievor was unaware of the possible consequences of employing this type of therapy. He was. When the grievor had also been doing some work for another Employer, he had been charged with sexual assault as a result of engaging in stomach massage of a client. He was acquitted of the charges. Ms. Sadana, the Director of Social Work, testified that when "- the grievor informed her he had been charged with sexual assault, she "said something to the effect that beqause of / / this we don't practice this type of therapy at the hospital" The grievor denied that she made a statement to him indicating the kind of treatment he had referred to did not take place in the hospital Ms Sadana testified that her knowledge of bioenergetic therapy was extremely limited She testified that she did not consider it to be a mainstream therapy for Social Workers and it was not advocated by the hospital. Common sense would dictate that if an employee told someone he had been charged with sexual assault for engaging in a non mainstream therapy which that-person knew very little about and, to their knowledge, was not advocated in their work environment, that person would be concerned Thi s 'member preferred the evidence of Ms. Sadana to that ,of the grievor's in that it is far more likely that Ms. Sadana would have indicated her concern to the grievor about using this type of therapy in the hospital '" - 5 - '~ The grievor employed bioenergetic therapy with Mr. X on two occasions in his car The grievor decided to conduct this therapy in his car because he was constantly being interrupted in the group home when he employed it with Mr. X. The grievor wanted privacy so he took Mr X to a residential street and parked his car In the 'grievor' s words fI at that time of day kids were coming home from . school and peo,ple were going into houses fI . When counsel for the Employer asked the grievor if people walking by his car could see in the car window the grievor stated "I do not think_they could, they could see in the window but not my massaging his stomach . I have a sense if you walk by my car it's difficult to see the lap area " . . . This member has difficulty understanding the grievor's logic The grievor wanted privacy in order to engage in the therapy. At l:east in the group home setting the 9ther clients would know the grievor and Mr. X. Parking the car on a residential street is a totally different matter'~ Children coming home from school who might have looked in the car window and seen the grievor massaging Mr. X's stomach would not have known the car's occupants nor understood what was happening. Concerning the issue of bioenergetic therapy taking place in a parked car, Mr Degraaff (who testified on behalf of the Union) was of the view that privacy was of more consequence . 41 - 6 - \7 than the location of the therapy The grievor, however, only speculated that the school children could not see into his car at the lap area. In the opinion of this member, the grievor should never have employed this therapy in a parked car. t Mr Degraaff is not a Social Worker, nor has he ever been trained as a Social Worker. He admitted he could not give an opinion on the scope of practice for a Social Worker As such, he also admitted he could not comment on the grievor's abilities as a Social Worker He testified he had never worked in a provincial psychiatric hospital and had never been part of a clinical team, nor was he acquainted with these patients. In cross-examination he indicated he was not prepared to give his opinion on the facts of this case He indicated that he felt qualified to give evidence only as to the nature and practices relating to bioenergetic therapy and what he would have done in particular situations Accordingly, I would not have given his evidence much weight Ms. Firsten, who testified on behalf of the Employer, is a Social Worker. She gave evidence regarding the standards of practice of Social Workers. She also emphasized the importance of pacing in a therapeutic relationship aIld referred to the vulnerability of clients with a past history of sexual abuse Based on her review of the in,formation provided by Mr X and Mr y to the hospital, Ms Firsten expressed the view that the suggestion of touch in the case J ~\ - 7 - .~ of Mr. Y and the touch in t,he case of Mr. X were r inappropriate actions on the part of the grievor and characterized them as "boundary violations". Ms Firsten indicated that. survivors of sexual abuse could readily misconstrue touching by the therapist As the majority pointed outr Ms. Firsten was of the opinion the grievor had only attended two lectures on bioenergetics and in her view this was not sufficient training to eng~ge in this kind of therapy. The majority ~lso indicated that the grievor's background in bioenergetics was more extetisive than Ms Firsten understood it to be and the grievor was engaging in bioenergetics at the first level As previously indicated, this member does not feel the grievor had sufficient training in bioenergetic therapy The two clients in question did, in fact, misconstrue the concept of touching. This member does not feel there was sufficient pacing between the grievor and Mr x. During the short time period' the grievor interacted with Mr X, the grievor said he covered a number of areas with Mr X The grievor testified he discussed Mr. X's past history of sexual abuse, covered the items in a document entitled "Twenty-four Stages of Growth for Survivors of Incest", discussed bioenergetic therapy, covered relaxation exercises to deal with his nightmares relating to his past sexual abuse and received I ... I - 8 - ~ consent from Mr X to massage his stomach. The grievor also admitted Mr X might perceive the touch as sexual abuse Mr. X testified that the grievor never discussed the reason for the touching, never mentioned the term bioenergetics and never gave him the document entitled "Twenty-four Stages of Growth for Survivors of Incest" For reasons outiined in the award, the majority preferred the grievor's evidence to Mr X's evidence Regardless of this fact, this member does not feel there was a sufficient time period for the grievor to cover all of the areas he said he covered and still receive informed consent from Mr X The grievor was aware Mr. X could misconstrue the stomach massage and Mr. X did As a result, this was a "boundary violation" in the opinion of this member In the opinion of this member, the grievor's behaviour with Mr X was totally inappropriate, falling well below the standards of care or conduct expected of a professional Social Worker The grievor's use of slang language to describe body parts' , his lack o.f charting concerning his meetings wi th Mr X, his failure to advise his Supervisor that he was using bioenergetic therapy on such a vulnerable individual, his employment -of the therapy in a parked car where he only speculated ,school children could not see what i he was doing, his lack of pacing and his "boundary '"' - 9 - iy' violation" was inexcusable The grievor testified that he should have informed another health professional about the nature and effects of the -therapy he had been providing to Mr. x. His failure to inform another heafth professional demonstrates extremely poor judgement. ~ Mr Y had been receiving treatment for depression while he " was at the hospital After his discharge he experienced I . ongoing depression and telephoned the grievor The grievor arranged to meet with Mr Y at his apartment about 9 00 p m 1 during one evening. Mr Y adamantly denied that this meeting the grievor told him that touching him was a part of bioenergetics or part of therapy The grievor testified he was; aware that Mr. Y did not like to be touched by men The evidence indicated that while Mr. Y was in the hospital he had disclosed past sexual abuse by a family member. ~he grievor testified when he met Mr. Y at his apartment, he tried to get Mr Y to disclose the fact he had been sexually \ abused In cross-e~amination when confronted with a document that indicated Mr Y had already disclosed to the grievor his sexual abuse, the grievor then said ,disclosure was like p~eling an onion and stated he was looking for abuse by another family member The grievor testified he told Mr Y about bioenergetics and this therapy would involve touching Mr Y's stomach Notwithstanding the fact Mr Y declined the offer to engage ..b' - 10 - ([ in this therapy, this member does not understand why the grievor would suggest rubbing his stomach when he knew Mr Y did not like bei~g touched by men This member also does not understand why the grievor would try to get Mr Y to -disclose (or elaborate on) past sexual abuse late in the evening away from the safety net and support of the hospital staff - This member does not understand why the grievor would initiate the use of slang language to describe parts of the body instead of using the clinical terminology. The grievor's statement that he initiated slang terminology to help Mr. Y express what was troubling him does not, in this member's opinion, make sense According to Mr Y, he told the grievor in the past t}:lat he did not like the grievor using the slang terminology The majority of the panel concluded that while the grievor was perhaps overly blunt, his motive was clearly therapeutic. In this member's opinion, his initiation of this language was uncalled for In addition, the grievor did not chart his visit with Mr Y nor did he contact the Nurse in the Outpatients Department to advise her of his meeting with Mr Y In the opinion of this member, the grievor's behaviour with Mr Y was also totally inappropriate, falling well below the ) standards of care or conduct expected of a professional -- ---- ------ ~~, - 11 - If Social Worker The grievor's use of sexually explicit slang language, lack of charting, lack of follow-up and his attempt to utilize this therapy on a vulnerable, depressed individual, a'Way from the support of the hospital staff, was inexcusable. The grievor admitted" in retrospect, it would talked I have been better for him to simply have to Mr. Y rather than sugges,ting bioenergetic therapy This also demonstrates extremely poor judgement ~ In the opinion of this member, the Employer provided sufficient evidence to demonstrate that the grievor inappropriately employed bioenergetic therapy without sufficient training, without regard to its appropriateness for patients who had been victims of sexual abuse and the grievor did so without documenting his actions and without authorization from his Supervisors His lack of judgement and his unacceptable behaviour fell well below the standards expected of a professional Social Worker. The grievor had only worked for the Ministry for about three and one half years. The grievor's positive performance evaluations of February 27, 1990, May 30, 1990, September 4, 1990, November 1 , 1990 and January 29, 1993 were all done before the Employer ever became aware (March 1993) that the grievor had been using bioenergetic therapy. Accordingly, this member would have upheld the discharge ~~. ~ Don M Clark I I ~ --