HR1100, Discussion Post 5, Fall 2019

https://docs.gov.nl.ca/lra/public/arbitration/detail/?id=3307&

Arbitration Name: Waterford Hospital and NAPE – Oakley, James C.

Employer: Waterford Hospital

Arbitrator: Oakley, James C.

Identified Issue(s): Evidence

Decision Date: 1998/12/08

Parties

The parties involved are the Newfoundland Association of Public Employees (NAPE) and the Health Care Corporation of St. John’s (Waterford Hospital Site).

The Grievor is referred to as J.M. The complainant is A.S who was a patient at the hospital J.M. was employed at.

Summary

J.M., a nurse practitioner was terminated after allegations of sexual misconduct by a patient at the Waterford Hospital. The issue was brought before Arbitration when the complaint was initially filed and the Grievor was criminally charged with sexual assault. The Grievor then made an application to Provincial Court for disclosure of the complainant’s hospital records. That request was denied by Provincial Court.

This arbitration hearing is now the second attempt of the Grievor to re-open the case and apply for an appeal. A testimony from A.S’s psychiatrist, David Collins, was submitted for review. It provided the court with more insight into A.S’s diagnosis of borderline personality disorder and bipolar disorder. It noted the deceitful nature of these mental illnesses and provided just cause to reopen the grievance and further investigate the facts of the case.

Employer Position

               When handling a grievance that relates to an alleged criminal incident, employers react with immediate dismissal out of fear of being subject to a lawsuit. Sexual harassment is an especially sensitive subject for employers—especially hospitals. The position of the Health Care Corporation of St. John’s is weak. It states that due to Canadian Charter of Rights and Freedoms that hospital authority should not allow access to patient records. They are arguing that the hospital records requested would be a violation of the patient’s confidentiality rights.

 Though it does not explicitly state this position of the Health Care Corporation of St. John’s, one could deduce that the penalty of an arbitrable grievance for wrongful dismissal would be less severe and detrimental than a lawsuit for negligence and abuse of a patient under hospital care. I feel that the employer chose the lesser evil in this approach to minimize their losses.

Union Position

The union believed that due to the nature of this allegation, the Grievor should proceed with the grievance in order to “clear their name”. Since their work, life, financial security, and personal freedom is at risk, it is the Grievor’s fundamental right to access the information in possession of the Employer that is relevant to the arbitration hearing.

               The Union’s concerns related to the credibility of the patient. A.S had been under-going electroconvulsive therapy during the time of the allegation which is said to affect memory, mood, and emotional stability. The personality disorder diagnosis, documented hypomania state of September 20^th, and further testimony by Dr. Collins should all be considered in the final arbitration proceedings.

Decision

 This arbitration concluded with the release order of the hospital records relevant to the events of September and October in 1996.

Fun Fact: Dr. Collins was my psychiatrist when I was admitted to the Waterford for a panic attack in 2011. He prescribed me to a medication that stole 3 years of my life. I chose this grievance report by chance and was interested to see what he said about his patients. I felt it necessary to write a note here to point out a few extra considerations when we are learning about these types of situations.
Though this documentation is supposed to be neutral, the tone of the testimony from Dr. Collins was weighted in favour of the Grievor. Sexual harassment and assault are tragically common in power-imbalance relationships, such as with mentally ill patients. People who suffer from BPD, bipolar disorder, antisocial personality disorder, and other issues, are not inherently deceitful, as this grievance report suggests. This is a dated study, and there is much more, current information available now regarding these diagnoses. There is also the #MeToo Movement which advocates to listen to the voices of survivors of abuse. While no one can know what really occurred during this incident, it is important that we still assess these situations with a critical lens, and not allow biases, misinformation, or ignorance to cloud our judgement. As someone who has experienced the mental health system first hand, I know it is extremely difficult for psychiatrists to have a full understanding of a patient’s experience, and while they are qualified academically, without having personal experiences with these mental health issues it is extremely difficult to assess, address, help, and support people who have these types of challenges. There is still a lot of bias and misinformation in the medical community, and while I value the work done by so many healthcare allies, there is still a long way to go in how we talk about, diagnose, and treat people with mental illness.