The grievant, employed for 18 years, was terminated for the allegation of Neglect Class I which is defined as:

A)                 Acts of commission or omission by an employee, volunteer, or agent of a provider that result from noncompliance with a standard of care or treatment required by law, rules, policies, guidelines, written directives, procedures, or individual plan of service and that cause, or contribute to, serious physical harm to a recipient; or,

B)                The failure to report abuse or neglect of a recipient when the abuse or neglect results in death or serious physical harm to the recipient.

The grievant was charged with failing to remain outside the bathroom at all times while a recipient was bathing.  The recipient drowned in the bath tub.  It was determined by the death certificate that the recipient committed “suicide” by “intentional drowning”.  The recipient was not on any type of “suicide watch”.

The grievant was a male and the recipient was a female.  The practice prior had been for staff to call into the bathroom about every five to 10 minutes to check on the recipients as a verbal communication that everything was fine with them.  However, just prior to this incident the employer decided to re-enforce their “Nursing Standard of Practice N-29 Baths” which stated in part;

Important points to remember:  “An assigned staff person will remain in the immediate bath/shower area at all times when in use, to monitor patient safety and to provide needed assistance.”

This means:  You must be able to hear the patient and be supervising the area.  Example: if a patient is in the tub, door must be partially open with staff at the door – explain to patient this is for safety reasons, tell patient you will be calling in to them to determine their safety at intervals.  Staff must stay at the door when the patient is in the tub.

The employer argued that the grievant failed to stay at the bathroom door at all times and only went back to the bathroom door in five to 10 minute intervals to verbally check recipient.  They went on to assert that the grievant’s failure to follow the Nursing Standard of Practice contributed in the death of the recipient which substantiated the Neglect I charge and termination of employment.

The Union argued that the grievant was not made aware that the employer was re-enforcing the Nursing Standard to discontinue the past practice of checking patients only every five to 10 minutes.  There was lengthy testimony by both parties on this issue to determine if the grievant had suck knowledge or not at the time of this incident.  Both parties entered evidence and witness testimony to support their respective positions on this point as each believed it was a key issue.

The Union, however, had a second issue they raised and that was the issue that the grievant’s failure to be immediately outside the bathroom door at all times did not contribute to the death of the recipient.  In reality this second argument was the key issue for the arbitrator.

The Union argued that even if the grievant had followed the Nursing Standard there was no evidence that the result for the recipient would have been any different.  The arbitrator agreed and stated the following in the award:

Suicide is, by definition, an intentional act.  M did not drown accidentally.  She had taken baths in the past and she was a general supervision patient on May 7.  As the Union stated in its brief, “there was no evidence that suck a suicide is not a ‘silent death’.”

Furthermore, the grievant (and Mr. G) maintained verbal communication with M on an intermittent basis while she was bathing.  Nothing in even the revised interpretation of N-29 requires that staff be in a continuous conversation with a bathing patient.  Had Mr. C been outside of the partially opened bathroom door continuously, he was not required to keep asking questions to M and waiting for responses.  He could have been stationed outside the door and communication could still have been made with M at 9:50 and 10:00 and she still could have committed suicide between 10:00 and 10:08.  Ms. Tucker’s conclusion in her recipient rights investigation was based on a faulty assumption.  It stated that “if staff were outside door a visual check would have been done sooner or they would have been able to hear anything unusual during the tub bath.”  There is no guarantee a visual check would have been done sooner, since the record shows that the male RCA had to obtain a female staff member to visually check on M.  Moreover, as discussed previously, the department failed to prove that there was something unusual to her before M drowned.  Thus, the employer failed to prove that had Mr. C complied with the new interpretation of the N-29 standard, the suicide could have be averted.

The arbitrator found that the grievant was not guilty of Neglect I, but was guilty of a first violation of “failure to enforce or observe rules/policies/regulations” which requires up to a five day suspension.  The grievant was returned to work with full back pay (less the five day suspension).