Drug abuse is a disability, judge rules
Addiction is a disability that must be accommodated, an arbitrator has decided.
After being caught with her hand in the cookie jar, a nurse at the London Health Sciences Centre in London, Ont., was fired for stealing drugs from her patients — but a judge ordered her reinstated, citing addiction as a disability.
The registered nurse — who is only referred to as "B.S." — was fired in May 2012, after being on long-term disability since February of 2011.
The 26-year-old nurse was let go for stealing and using narcotics while on the job, her bosses said. Because the nurse worked in the Surgical Care Unit, she often dealt with post-cancer surgery patients who experience intense amounts of pain. That also meant B.S. had access to medication such as morphine, Percocet and other sedatives.
She admitted to stealing the drugs — but not right away.
Suspicions were first raised in January of 2011, when B.S.’s fellow nurses and even a daughter of a patient mentioned to a supervisor they thought she had been taking drugs from patients. Though an initial investigation showed nothing unusual, in February, the evidence was overwhelming.
While working the graveyard shift, three other nurses noticed odd behaviour. Of particular concern was that she had indicated she administered morphine injections to a patient, but the patient said he only received tablets that night.
The next day, B.S. was questioned by her supervisor. And she denied everything, chalking her skewed behaviour up to a weekend spent skiing. Her supervisor asked her to undergo a drug test, which she refused, and instead opted to meet with her union representative.
During her meeting with the local president of the Ontario Nurses’ Association, B.S. admitted to having a substance abuse problem and that she had stolen drugs from the hospital.
Subsequently, the hospital’s investigation revealed about 50 discrepancies over the past month. After going on disability leave, which was set to expire in June 2012, the hospital decided to fire the nurse in May.
"At the very least, to provide pain control to (patients) should be a priority for any nurse. She has destroyed the relationship with the patients and I know that I couldn’t trust her to care for our patients," the hospital said in the decision.
Red herring
But the nurses’ association disagreed. Being a disability, substance abuse drove B.S.’s actions, and her termination was therefore a violation of the collective agreement and the Human Rights Code.
What is more is that the nurse admitted to and showed remorse for her actions, and sought rehabilitation. She was ready to come back to work now, the association argued.
Though she started working at the hospital in 2008, she only started stealing drugs in 2010. She admitted to reporting for work high, and accepted that substance abuse likely affected the care of her patients.
After her rehabilitation program, she was deemed fit for work by a treatment centre doctor and the College of Nurses (the latter of which outlined specific provisions to aid her return to work).
According to B.S., she had been drug and alcohol free since March 2011 — the drug tests twice a week confirmed it.
Her actions were a red herring. Of course she was forced to take the drugs, "she’s using because she’s dependent," the nurses’ association argued, saying that whether or not she knew what she was doing was irrelevant.
Despite that, the hospital stood firm. B.S. was a short-service employee who had admitted to serious thefts, falsified records, and failed to care for patients by deliberately denying them pain medication.
Overall, the hospital argued, nurses are held at a higher esteem compared to run-of-the-mill workers, simply because of the nature of their duties.
Drug abuse is still a disability
In his ruling, arbitrator James Hayes agreed with most of the hospital’s arguments — with one exception.
Substance abuse is a clear disability — as demonstrated through testimony from B.S.’s doctors. Clearly, her addiction affected her actions, and both the College of Nurses and her doctor determined B.S. was ready to return to work. Not only had she shown she underwent a rigorous healing process, but she had genuinely demonstrated remorse for her actions.
"There is nothing that B.S. could have done to support her recovery beyond what she has done," Hayes said in the decision. "While recovery from addictions is a lifelong challenge, to date, B.S. may be seen as a remarkable success story where many others have failed."
Thus, she was ordered reinstated.
Reference: London Health Sciences Centre and the Ontario Nurses’ Association. James Hayes — Sole Arbitrator. Brian O’Byrne for the hospital and Stephen Moreau for the union. Jan. 8, 2013.
