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HomeMy WebLinkAbout1981-0196.Clarke.81-08-27196181 IN THE MATTER OF AN ARBITRATON . Under the CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between Mr. Audley Clarke : Grievor, ind Before: For the Grievw: The Crown’in Right of Ontario Ministry of Health Em$oyer. Professor K. Swinton - Vice-Chairman Mr. E. O’Kelly - Member Ms. M. Perrin - Member Mr. S. S. Laufer, Counsel Kotick and Associates For the Employer: Mr. Dennis Brown, Q.C. Ministry of the Attorney General ,Hving: June 29, 1981 -2- This case arises from a grievance in which Mr. Audley Clarke claims that he has been unjustly discharged from his job as a Psychiatric Nusing Assistant 2 with the Ministry of Health. The discharge occurred on January 15, 1981 and arose out of an incident in which the grieva became involved in a sexual relationship with a female outpatient of the Dundas Day Centre, his place of employment. The Ministry discharged the grievor on the grounds that this oxstituted unprofessional conduct. The griever, a man of 45 years of age and married with three children, was employed as a therapist at Dundas Day Centre (now la~own as Central Link). He had been employed with Queen Street Mental Health Centre since August, 1970 and with the Day Centre since January, 1975. The Day Centre is a satellite programme of the Queen Street Mental Health Centre staffed by seven or eight people, including registered nurses, nursing therapists and social wakers, with psychiatric backup. The purpose of the Centre is twofold: to Fovide aftercare service to patients discharged from the Queen Street Centre and to treat out-patients referred by physicians, hospitals or social service agencies in the area. The Centre operates on an informal basis, with the objective of teaching social skills. Therapy is provided on a team basis, with the client assigned to a therapist and a co-therapist as backup. There is a socialization aspect to the treatment provided, exhibited by the reference to patients as “clients”, shared decision-making between clients and staff, and frequent group outings from the Centre planned by clients, with staff accompaniment. Such outings might include bowling, theatre OT community service activities. -3- This case arises out of the grievor’s involvement with a woman who was a patient at the Centre from July 21, 1978 until her discharge on February 5, 1979. She wili be referred to in this award as “W”. W is a yolng woman, twenty-nine years of age, who came to the Centre on referral from a public health nurse because of problems in parenting. She was th& a single parent with a baby two months of age and had difficulty in coping with the child. The father of the child was deported in July, 1978 and did not return to Canada until February, 1980 (W having gone to Jamaica in November, i979 to marry him). The grievor met W on her arrival at the Centre. Joan Scott, who was to become her primary therapist, was absent, so he filled in for the initial assessment with’ W. Subsequently, he became her co-therapist. Joan Scott, in assessing W,,found that she had problems in communicating : and relating to others, as welj as parenting. As a co-therapist, Mr. Clarke saw W on outings and participated in groups in which she was a member. He testified that W’s attendance at the Centre was erratic and that he made only one visit to her home while ,. she was a patient, with a Dr. Frank present. It is the practice at the Centre to record all home visits or to discuss such visits in the staff meetings which occur daily. Ann Nishio, the Head Nurse and Coordinator of the-Centre, testified that the griever never. reported that he had made home visits to W. It was not denied that the grievor subsequently became involved in a sexual relationship with W. The debate in the hearing centred on the -4- date on which the involvement began. The Ministry argued that the relationship began in January, 1979, while W was still a patient. The grievor claims that he first saw W socially in April, 1979, and first had intercourse with her in May, 1979. For reasons which will be discussed further in this award, the date is not determinative of the grievor’s blameworthiness. However, the gravity of his conduct would perhaps be greater if he &came involved with a patient while she was actively undergoing treatment. Several witnesses, including Dr. Henry Durost, Medical Director of Queen Street Mental Health Centre, and Ann Nishio, Coordinator of Central Link, expressed concerns about the interference with treatment that is likely to occur when a therapist becomes emotionally involved with a patient. In addition, patients with mental health problems, while in the course of treatment, are particularly vulnerable to exploitation by an unsuupuIous person in an authority position. W testified that the relationship with the griever began on January 13, 1979. She said that the griever telephoned her to ask lf he could come to her home to teach her to play the guitar. She said that a girlfriend was present when he came and that he stayed about two hours. On the second visit, also in January, they had intercourse. Their relationship continued until February, 1980, with meetings two to three times a week. W left the Centre because she felt ashamed to carry on a romantic relationship with the griever while he was a therapist. She said that he encouraged her to leave the Centre. She claims that this occurred in late March, although the Centre’s records show February 5 as the discharge date. The relationship ended in February, 1980. By that time, : -5- ,. W was pregnant, and she ‘believed the grlevor was the father of the child. ~A subsequent blood test in a pafernity suit’proves that this is not true, but W refuses. to believe the evidence and still believes the grievor is the father of her child. The grievor’s story is quite different. He testified that he had no social relationship with W’outside the Centre.until. after her discharge and that he had no contact with her from February until April. In April of 1979 she called the Centre and asked specifically for him in order to see if there were any boxes available for her use in moving. The grievor saw her , several times after that. He said that 99% of the time she called him, usually on the pretense that she needed something done at her apartment. He first had intercourse with her in May, 1979, testifying that she was the initiator both then and on most other occasions. He claimed that he broke off the relationship in February or March, 1980 because his supervisor, Ann Nishio, spoke to him in January about his relatimshlp with W. Nishio stated that a community worker had complained because the grievor was seeing W. The grievor claims that he said he was seeing W, but did,not mention that there was any greater $ersonaI involvement. He took Mrs. Nishio’s queries as a warning to “cool it” and did so. ” Mrs. Nishio’s version of this conversation is somewhat different. She ‘said that it occurred in November, 1979 and that the grievor denied any involvement ‘with W. She testified that she had also spoken to the grievor in’ 1978, telling him that he should not socialize with clients after tWJtS. -6- The grievor was discharged after W sought Mrs. Nishio’s assistance in April 1980. W was very upset and asked Mrs. Nishio to intercede with the grievor. Mrs. Nishio was concerned about the grievor’s conduct because it appeared that the relationship had started while W was a client and that she had been taken advantage of because of her client relationship. Ultimately, the grievor was discharged in January, 1981. It was stated at the hearing that the delay was due to problems in scheduling an internal investigative hearing because the griever’s lawyer was unavailable. It was admitted by all witnesses that the grievor was at all times up to his discharge a highly competent therapist, respected by his fellow workers. This brings us to an assessment of the credibility of the witnesses and a decision as to the consequences to be attached to the griever’s conduct. This is not an easy task. On the one hand, we have W very certain that her relationship with the griever started in January, 1979, pointing out that she recorded this fact in her diary and calendar. Her stcry is reinforced by the evidence of a friend, Jim Cruws, who stated that he visited the grievor on January 26 for a weekend and babysat while the griever and W went out. He was most emphatic that he had met the grievor with W before her move in April, which he helped carry out. The griever testified that he first met Cruws at the time of the move. Weighing against this evidence is W’s apparent error in her discharge date. She says this was in late March, while the hospital staff regard February 5 as the date. This discrepancy may be explicable because of the nature of the Day Centre programme, which is quite informal. W’s attendance was said to be erratic by three witnesses, and this apparently -7- led to tier discharge. Ex-clients do, however,‘conti&ue to come to the Centre fq coffee and outings, and it may be that W was still-attending some outings, even though formally discharged. ‘. More problematic is W’s misperception about her child’s paternity. She is convinced that the grievor is the father despite the blood test to the contrary. Si@larly, she. appears to have exaggerated the degree of attention given to her by the grievor prior to their relationship. She stated that he gave her more attention than other clients. Two other members ~of the nursing staff denied this. There was some suggestion that her credibility might -also be in question because of her past sexual history. This suggestion is distasteful, and we do not believe that her past conduct affects’ her credibility in this case. ’ . . The grievor, on the other hand, was quite sure of his dates. He was also adamant that he had never been involved with a patient during treatment. This was despite the evidence of M, another ex-dient, who testified that the grkvor had carried on a s&xual relationship with her over almost a year in 1978 while she was a patient of the Centre. We accept M’s story in preference to the griever’s, for she appeared to be’ a truthful witness and had nothing to gain by testifying. She seemed to bear no vindictiveness to the griever. Two other considerations must be broughi to bear iA assessing the griever’s evidence. One is the interegt.which he Iias in protecting his job and showing his conduct to be blameless or, at least, less blameworthy. A -8- second problem arises out of W’s purported course of conduct. It seems strange that W would wait two months after her discharge from the Centre before contacting the grievor and then pursue him so persistently. On weighing the evidence, with difficulty, we are disposed to prefer W’s story to the grievor’s. However, we are not completely convinced that the date of the first encounter was January 13, as W testified. She had problems with specifting the discharge date and this one, too, might well be somewhat out. Similarly, Cruws’ evidence about January 26 must be discounted, for he was quite uncertain of all dates except for this one. However, what we do conclude is that the griever’s relationship with W began at some date close to the date of discharge and while W seemed to be still dropping into the Centre. We have no doubt that, in doing so, the griever engaged in unprofessional conduct in his relationship with W, and this is true in the circumstances even if she was no Icnger a patient. It was clear from the testimony of Dr. Durost and loan Scott that W had communication and interaction problems. She had previously undergone assertiveness training at Toronto General, although she was a far from forceful personality. At the hearing, she appeared most upset and had difficulty coping with some of the questions. It was evident that she was a vulnerable person. This is why it seems strange and unprofessional that the griever, her co-therapist, entered into (and, we believe, initiated) a relationship with her at a time when she was experiencing great difficulty in handling family stress and social interaction. -9- Whether or not this started prior, to her discharge is not ,, .: ‘. ‘, determinative, in our opinion, of his blamewbrthiness. Great stress was :... . . placed, by Mr. ,Clarke’s counsel on the fact that W was no longer a patient . ,and there were~ no rules against nurses becoming friends or lovers of -, ex-patients. Several witnesses, including Jean Smith, a nurse, and Dr. Durost, agreed that there were no explicit ruies against involvement with ex-patients. Such statements, however, should be put in context. We are not dealing here with a nurse who meets a patient on a medical ward and .., ,. .I~ who sees her,after she is discharged, with her appendicitis cured. It is unlikely that the nurse-patient relationship will resume and, even if it does, the nurse, need not ,continue to care for that patient nor is the .~ ., :. relationship, likely to interfere with the cure. Here, we are dealing with a very. different type of medical condition. W is a woman with psychiatric problems, including communication and dependency problems. .Even if she is technically discharged, she may not be cured. She may well have been discharged because her attendance fell off. Even if discharged as cured, ii there is a danger of relapse, according to Dr. Durost’s evidence. In such a _‘. situation, a therapist, like the grievor, has an ongoing obligation to the patient. In effect, a tiust is created by his knowledge of her condition and her vulnerability, and he should not act in such a way as to jeopardize the recovery nor interf-ere with the treatment of the patient nor prey upon the susceptibilities about which he,has learned as a therapist. . ‘. In this case, Mr. Clarke acted in an unprofessional manner in carrying on his aff,air with W and he was not unaware that what he was doing was questionable. When Mrs. Nishlo spoke to him, whether in I 1 : ._ - 10 - November 1979 or January, 1980, it is dear that she was concerned about W. He was not totally forthright about his relationship with W, indicating some recognitim of misconduct. He did not try to vindicate himself by stating that W was an ex-patient and, therefore, the Centre had no further interest in her activities. Mrs. Nishio, at least, seemed to feel that there was room for concern. Although we conclude that Mr. Clarke engaged in unprofessional conduct, it should not be assumed that every encounter between an ex-patient and nurse is to be regarded as unprofessional conduct on the part of the nurse. Our concern here is the griever’s apparent exploitation of the patient’s vulnerability, misusing his position as a counsellor with a woman IKJ doubt flattered by his attention, but also unable to judge its sincerity and open to exploitation. This was not a normal social relationship. The griever was married and appears to have had no intention to leave his wife. He had engaged in such conduct previously with M, evidence which tends to support the finding of a misuse of his position, rather than a finding of a normal social interaction. Cinally, it should be emphasized that the grievor is not being disciplined because of his standards of sexual propriety. The concern of the employer and of this Board is , rather, the impropriety of a nurse engaging in a sexual relationship with a patient or recent ex-patient of a mental health facility because of the vulnerability of the patient and the effect on that patient’s well-being. The closest analogy in decided cases would be to conflict of interest cases, such as Van Der Linden and Ministry - II - of Industry and Tourism, 247/79, where discipline is imposed because of misuse of information and opportunities arising out of a positionthat may jeopardize the employer’s interests or programmes. Certainly, that is the case here, where a position has been abused and Where the reputation of the Centre may well bedamaged by suchconduct on the part of a staff member. It was suggested that the grievor should be regarded as blameless because of the employer’s failure to promulgate rules defining the appropri’ate standards of behaviour for staff and patients and ex-patients. There is no doubt that drafting of such rules would be a wise step on the part of the employer. However, the lack thereof does not exonerate Mr. Clarke. As a registered n&sing assistant, he sho’uld have been aware of the wrongful nature .of his conduct, and it appears from his responses to Mrs. Nishio that he was aware of that fact. At most, the lack of clear and precise communication of the gravity of the conduct,/s a factor whLch can be considered in exercising our jurisdiction under s.1%3) of the Crown Employees Collective Bargaining Act, R.S.O. 1980, c.108.. By that section, the Board can substitute a just and reasonable penalty if dismissal appears excessive. In this case, after much deliberation, we feel that discharge is excessive for several reasons. One is our concern that the employer failed to emphasize the gravity of such off-duty relationships to staff and to set guidelines for such relationships. Secondly, the griever’s age and work record are important concerns. The grievw is 45 years old, with a family. He istrained as a - I2 - psychiatric nursing assistant and is reputed to be a good one. If discharged, it is difficult to see how he could find substitute work in his field, with consequent hardship. For these reasons, we are prepared to allow the grievance and to order that the grievor be reinstated, but without any backpay or accrual of credits. This amounts to a lengthy suspension, which is warranted in light of the griever’s conduct. Furthermore, the griever should be warned that any repetition of such conduct with patients or ex-patients would be grounds for discharge. It should be noted, as well, that while the grievor is being reinstated to employment, it would not be inconsistent with this award for the employer to transfer him to another position outside the Centre, should the employer feel it wise to do so. This Board will retain jurisdiction to deal with any problems arising out of the implementation of this award. Dated at Toronto this 27th day of August, 1981 jx u-l-L& Professor K. Swinton - Vice-Chairman I dissent - see attached It Ms. M. Perrin - Member