'When imposing discipline, consider what the next logical step in the process might be': lawyer
“Be really sure what your investigation shows and what it doesn’t show, before you impose or make a decision about discipline.”
So says labour and employment lawyer Madeleine Loewenberg of Loewenberg Psarris in Toronto, after an Ontario arbitrator ruled that a nurse's conduct around medications justified discipline, but termination was excessive and not in line with how colleagues were treated.
The worker, who was a registered nurse (RN), was hired in 2007 by the Centre for Addiction and Mental Health (CAMH), a psychiatric and teaching hospital for patients with mental health and addiction issues in Toronto. She worked mostly on the mood and anxiety unit (MAUI), a locked inpatient unit for patients with mood disorders.
CAMH had a closed-loop medication administration process that kept an electronic record for each patient. Medications were kept in the medication area of the nursing station in a locked cabinet while controlled substances were in a double-locked narcotic cabinet.
There were four mobile medication carts with computers so nurses could access the electronic medication records of patients. The carts also had locked drawers in which to put medications once they were removed from the cabinets, although medications were supposed to be kept at the nursing station until they were ready to be administered.
Medication error
On Jan. 4, 2019, the worker had to cover a colleague’s break by looking after a patient who needed constant observation. She withdrew a medication intended for a patient who was away from the unit and she believed was returning imminently. However, she realized the patient hadn’t come back yet, so she asked another nurse to administer the medication while she attended to the patient needing constant observation. She left the medication near the cabinet and entered it in the system as administered, and medication for another patient was left on a mobile cart.
The other nurse administered the medication that was on the cart to the patient and recognized immediately that she had made a mistake. The worker informed a supervisor and said that the patient was being sent to another hospital for tests. The patient ended up being fine, but CAMH considered the medication error as moderately harmful.
CAMH investigated and found that the worker didn’t follow medication protocols, including bypassing the closed-loop verification and proper documentation. The worker explained that she had been in a hurry and had mistakenly believed that the patient was returning, so she scanned it as administered.
CAMH determined that the workload on that shift was manageable and observed that the worker seemed upset at the interview and showed no acknowledgment of an error. CAMH suspended the worker for three days on March 18 for “inappropriate, unprofessional and unsafe conduct” and dismissed the other nurse. The worker was also required to undergo a learning plan.
The worker grieved the suspension as excessive, as she had no prior discipline, she admitted to the error, the workload was demanding, and she had taken proper steps to get the patient treated after the medication error.
The worker completed the learning plan that included standards and practices for administration and storage of medication.
Policy violation
On April 8, management discovered a mobile medication cart containing a stockpile of more than 500 medications in its drawers, including controlled substances. There were also barcode booklets for medications that were unattached to actual medications for the closed-loop medication system. This was a violation of hospital policies and practice standards from the College of Nurses.
Also in the cart were several items labelled as belonging to the worker.
On April 12, management emailed MAUI nursing staff about safe medication practices and that there would be an investigation, with the expectation that staff wouldn’t discuss individual interviews after they took place.
The investigation included interviews of 13 RNs, six registered practical nurses (RPNs), and two ward clerks. Nearly all, including the worker, admitted to knowing about the stockpile for years, and several to accessing it to administer medication to patients. The worker said it had been a few months since she had used the stockpile.
The worker said she stored her labelled items in two drawers of the cart, but she denied organizing the stockpile, saying everyone knew the code to the cart. No RNs said they received the code from the worker, but one RPN did.
Most of the nurses were apologetic for not reporting the stockpile, but the worker didn’t acknowledge that it was wrong, just that she was sorry she wasn’t more proactive.
The worker was interviewed again and told what management had learned, and she didn’t disagree. She reiterated that she didn’t have a role in organizing the stockpile but if she used something, she would replace it.
Termination for cause
The worker was placed on paid leave on July 29. On Aug. 8, all RNs and RPNs on MAUI received a non-disciplinary letter about expectations around safe medication practices. On Aug. 14, CAMH terminated the worker’s employment for not following medication storage standards, which she had reviewed following her suspension.
According to CAMH management, the reason the worker was terminated while other staff weren’t was because her belongings were in the medication cart with the stockpile, she didn’t acknowledge her misconduct, and she misled management during the investigation when she denied encouraging others to use the stockpile.
The worker filed a grievance, alleging there wasn’t cause for termination and it was unfairly excessive compared to other MAUI staff.
The arbitrator found that CAMH had just cause for discipline for the Jan. 4 medication error and the three-day suspension was “within the range of reasonable penalties.” It was a serious error that endangered a patient and a serious breach of nursing standards and hospital policies, said the tribunal in dismissing the suspension grievance, noting that CAMH fully investigated the incident.
As for the medication stockpile, it was a breach of hospital policy and professional standards that created a risk for patients due to potential medication error, said the arbitrator. In addition, the worker’s knowledge of and participation in the stockpile along with her failure to do anything about it was just cause for discipline, the arbitrator said.
Investigation results
However, the arbitrator noted that almost all of the MAUI nurses were aware of the stockpile and several admitted to using it. Although CAMH tried to argue that the worker had closer ties to the stockpile because of her belongings in the cart, it was the cart she regularly used and there was no evidence she encouraged colleagues to use the stockpile, said the arbitrator, adding that the worker’s denial that she encouraged colleagues to use it couldn’t be considered a lack of honesty.
“The investigation was very well done, but I think the issue for the hospital was what they did with the results,” says Loewenberg. “It seems like they misapprehended some of the information they collected - for example, they said the worker encouraged other people to administer the medications, but it doesn't seem like there's actually any evidence of that, and she didn't take appropriate steps to notify the hospital, but none of the nurses did.”
The arbitrator acknowledged that the worker had “a heightened responsibility” to take steps to remedy the situation because of her recent discipline and learning plan but found that her role in the stockpile “was basically the same as that of many of her colleagues.”
The arbitrator determined that the worker’s dismissal lacked proportionality and a 10-day suspension was more in line with the principles of progressive discipline.
“When we consider the factors that go into what is an appropriate penalty - the seriousness of the misconduct, the worker’s employment record with a prior suspension, whether the breaches were done on purpose, whether she showed remorse - these were all considered by CAMH,” says Loewenberg. “But what they seemingly got wrong were two elements - the progressive discipline element, to go from a three-day suspension to termination is a pretty big jump, and then the idea of proportionality of discipline.”
Reinstatement
CAMH argued against reinstatement, citing concerns about trust and workplace viability. However, the arbitrator found these concerns insufficient to deny reinstatement and determined that the employment relationship could be repaired.
CAMH was ordered to reinstate the worker without loss of seniority with the 10-day suspension on her record.
Progressive discipline can be tricky when trying to determine the appropriate level, according to Loewenberg.
“When imposing discipline, consider what it means to have progressive discipline, what the next logical step in the process might be, the seriousness of the offense, and how others in similar situations have been treated,” she says. “The steps don’t have to be sequential - it doesn't have to be one, three, then five-day suspensions - but if you're going to take a big leap, you had better be able to justify it, and here they just couldn't when you look at the prior discipline and how others were treated.”
