Two residents of the home, both with dementia, were arguing. The grievor used force to separate them when it appeared to her they were in danger. The arbitrator ruled that her judgement was wrong and she should have dealt differently with the conflict.
A nurse at a long-term care facility was fired after it was determined that her efforts to move a patient with dementia violated policies and procedures governing patient care.
D.M. was a Registered Nurse employed at a long-term care facility. She had worked at the 126-bed facility for several years when she was fired on Oct. 18, 2011. There was no discipline on her record except for a written warning issued in 2011 for inappropriate dealings with an outside service provider.
D.M. was the charge nurse overnight on the shift that began on the evening of Oct. 3, 2011.
At about 4:30 a.m., P.T. — the Personal Support Worker assisting on the shift — heard yelling on the ward.
Patient N was yelling — telling patient A to get out of her bed. Both patients were of advanced age. Both suffered from dementia and were in very agitated states.
D.M. determined that both patients were at risk and that A was in danger of being assaulted by N.
Determined resistance
A refused to voluntarily return to her own bed. D.M. and P.T. then attempted to return A to her own bed. However, A put up determined resistance, thrashing, yelling and clinging to the bed rails.
D.M. and P.T. pried A’s fingers from the rails and attempted to transfer her first to a lift and then back to her own bed. At one point during the transfer, A slipped to the floor. A suffered no apparent injury as a result and calmed down once in the lift.
About 15 minutes later, A approached and showed P.T. her swollen left hand. P.T. gave her ice to relieve the swelling.
Later that day, the facility administrator interviewed both P.T. and D.M. about the incident. A was examined and X-rayed. A had a bruise but no broken bones.
On Oct. 5, D.M. emailed the administrator to clarify some issues.
A Critical Incident Report on the incident was filed with the Ministry of Health and Long-term Care on Oct. 7.
On the Oct. 13, D.M. was interviewed again — this time with union representation in attendance.
At that meeting, D.M. was shown the facility’s Zero Tolerance on Abuse policy. D.M. insisted that she had done nothing wrong. She said she had acted properly to get A out of danger and that she would do the same again.
The facility administrator interviewed D.M. again on Oct. 18. D.M.’s views on the appropriateness of her actions in the circumstances had not changed.
D.M. was fired. The union grieved.
The union said that the discipline should be void. It argued that the investigation was incomplete, biased and flawed. In addition, D.M had no union representation at her first interview. Failing a finding that the discipline should be void, the union said that there was no evidence to overturn a finding that D.M. did anything other than what was reasonable in the circumstances.
Residents’ Bill of Rights
The employer said that termination was warranted. D.M. failed to follow the care plans designed for the two patients. Moreover, applicable statutes such as the Residents’ Bill of Rights in the Long Term Care Homes Act and workplace policies to control abusive or aggressive resident behaviour prohibited the use of physical force, restraint and rough treatment. D.M. had been trained to use alternate techniques to de-escalate such situations. The employer said that D.M. had acted inappropriately in response to a non-emergency situation.
The Arbitrator agreed and said discipline was warranted.
The union representation argument had no merit, the Arbitrator said. While the collective agreement said that an employee “may” have a representative present at a disciplinary meeting, it was not a requirement and D.M. made no such request.
D.M. had a number of options in the situation. She made the decision that A had to be moved. It was a professional judgment call but the wrong decision, the Arbitrator said.
“What is clear to me is that pushing ahead with the move to her own bed agitated A quickly. [D.M.] made a professional judgment call to continue. This was contrary to directions or suggestions in the care plans of both [A] and N. Both call for time-outs. It seems to me that allowing N to stay in the room was a mistake, and pushing ahead when A became agitated equally wrong. It may have been a judgment call but showed bad judgment on [D.M.’s] part. There were other less intrusive options.”
Applying the standard of a reasonable health-care provider, the Arbitrator said that the “decision to push ahead in the face of increasing agitation was a violation of the… Aggressive and Abusive Resident Behaviour Policy and the care plans for A and N, and discipline was called for.”
The grievance was dismissed.
