Fearing a lawsuit, the hospital fired a security guard who had left bruises after restraining a violent patient. However, his actions turned out to be consistent with his training and not an over-reaction.
Called to provide assistance at the psychiatric ward, a security officer was fired after the employer said that the officer had used excessive and inappropriate force when he assisted in moving a distressed patient to the Acute Care Unit.
A part-time, casual Security Officer (SO) at a health care facility, O.U. was called to give assistance at the psychiatric ward. O.U. and a number of other SOs responded.
Arriving on the scene, O.U. encountered a colleague on the nursing staff attempting verbal de-escalation techniques on a patient who was in distress. At that time, the patient was sitting in a chair in a hallway about 75 feet from the Acute Care Unit (ACU).
The patient refused oral medication and became extremely agitated when told she would be given an injection. After the patient knocked over a plant, one of the nurses gave the order to move the patient to the ACU to be medicated.
O.U. and a nurse moved in. The patient was non-compliant. To force the patient to stand, O.U. grasped her left arm and lifted it behind her back and raised the patient to her feet. The nurse grasped the patient’s right wrist, placing her other hand under the patient’s armpit.
Strenuous resistance
In this fashion, O.U. and the nurse moved the patient down the hall to the ACU. While the move lasted only a matter of seconds, the patient offered strenuous resistance, kicking, shouting, pulling against the holds and attempting to drop to the floor as dead weight.
The patient complained that O.U. and the nurse were holding her too tight. She threatened to sue them if she had bruises as a result of the move.
In fact, the patient did suffer bruises to her left arm and O.U. was fired. The termination letter charged that O.U. had used an “inappropriate” degree of force when moving the patient and that he continued to do so even after the patient complained that he was hurting her.
The union grieved.
The behind-the-back hold that O.U. used on the patient was off limits, the employer said and not part of the official Crisis Prevention Institute (CPI) training that SOs receive. Even if the hold was not entirely inappropriate in the circumstances in order to get the patient to her feet, O.U. should not have used it for the entire move. As well, O.U.’s uncertainty when questioned about whether or not he had used the hold for the entire move called his credibility into question. In any event the fact that the patient was only bruised on the arm that O.U. had held was a sure indication that he had used excessive force, the employer said.
The Arbitrator disagreed.
Like other hospital employees, SOs do receive CPI training. However, they are also trained in additional Use of Force techniques, including holds such as the one used by O.U. The Arbitrator accepted that the CPI techniques may be more suited to use with patients but there was no formal prohibition or bar on using Use of Force techniques when necessary.
While the testimony was contradictory about whether or not O.U. used the questionable hold for the entire move — he said he switched to a less coercive hold halfway to the ACU — the Arbitrator said the issue was not determinative.
No intent to deceive
Whether he did or did not switch holds did not change the fact that he admitted to using it initially. Therefore, if that use constituted inappropriate force then O.U. gained nothing by saying that he switched part way to the ACU. Certainly it was not evidence of an intent to deceive, the Arbitrator said.
Determining the degree of O.U.’s responsibility for the patient’s bruising was not a simple matter, the Arbitrator said.
“[I]t is possible that the injury to the patient was caused by the struggle and the reasonable efforts made by the grievor to prevent the patient from breaking free. In a situation where the patient is exerting significant energy in resisting a restraint, and constantly dropping her weight as described by all witnesses to the event, one cannot expect the grievor to have precision control over the intensity of his grip on the patient’s arm. Reviewing the matter after the fact, it is possible to say that the grievor applied excessive force, but my conclusion is that it is equally as likely that the stiff resistance put up by the patient led to the bruising.”
The employer, the Arbitrator said, made a number of attempts to characterize O.U.’s actions in a negative manner. “[T]his did not enhance the employer’s case,” the Arbitrator said.
In addition, the employer attempted to raise a number of other incidents purported to show O.U.’s propensity for aggressive behaviour. However, O.U. had not been disciplined for the alleged transgressions and therefore they did not form part of his record, the Arbitrator said.
While the Arbitrator did accept that O.U.’s roughness during the event warranted a warning letter, there was not just cause for termination.
The grievance was accepted and the employer was ordered to reinstate O.U.
Reference: University Health Network and Service Employees International Union, Local 2. Barry Stephens — Sole Arbitrator. Andrew Zinman for the Employer and Mary Hart for the Union. January 7, 2011. 30 pp..
