Issue: Group III Written Notice with suspension (failure to report patient abuse); Hearing Date: February 5, 2001; Decision Date: February 9, 2001; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; AHO: Carl Wilson Schmidt, Esq.; Case No. 5113

DEPARTMENT OF EMPLOYMENT DISPUTE RESOLUTION

DIVISION OF HEARINGS

DECISION OF HEARING OFFICER

In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case No: 5113

Hearing Date: February 5, 2001
Decision Issued: February 9, 2001

PROCEDURAL HISTORY

On October 30, 2000, Grievant was issued a Group III Written Notice of disciplinary action with a suspension from October 31, 2000 to November 29, 2000 for:

On November 16, 2000, Grievant timely filed a grievance to challenge the disciplinary action. The outcome of the Third Resolution Step was not satisfactory to the Grievant and he requested a hearing. On January 10, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On February 5, 2001, a hearing was held at the Agency’s regional office.

APPEARANCES

Grievant
Legal Assistant Advocate
Director of Safety
Director of Nursing
Human Rights Program Supervisor
Human Resources Practitioner II
Hospital Director

ISSUE

Whether Grievant should receive a Group III Written Notice of disciplinary action with 30 days suspension.

BURDEN OF PROOF

The burden of proof is on the Agency to show by a preponderance of the evidence that its disciplinary action against the Grievant was warranted and appropriate under the circumstances. Grievance Procedure Manual ("GPM") § 5.8. A preponderance of the evidence is evidence which shows that what is sought to be proved is more probable than not. GPM § 9.

FINDINGS OF FACT

After reviewing the evidence presented and observing the demeanor of each witness, the Hearing Officer makes the following findings of fact:

One of the Facility’s responsibilities is to treat patients who have been charged with crimes but have been determined to be incompetent to stand trial or found not guilty by reason of insanity. The Facility staff refer to these patients as their clients.

On September 4, 2000 at approximately 10:30 p.m., a Forensic Mental Health Technician (not the Grievant) verbally abused¹ a client. The client had initiated the conversation with the Technician by threatening to sexually assault her and her daughters. The Technician responded by threatening to physically batter the client. The Agency took disciplinary action against the Technician and she resigned in lieu of termination.

On September 11, 2000, the client reported the incident to the Facility’s Patient Advocate who in turn informed the Facility Director and an investigation began. The investigator interviewed numerous staff and clients and then prepared a report.

Grievant answered the investigator’s questions and drafted a handwritten account of what he heard. He stated that he was located down the hall attending to a 2 to 1 client when the incident occurred. A 2 to 1 client is a client whose behavior requires two facility staff to be within arm’s length of the client 24 hours of the day. Policy No. CP-39A. Grievant heard a confrontation between a client and the Forensic Mental Health Technician. He heard the client threaten to sexually assault the Technician and her children. He heard the Technician make a vulgar statement and then threaten to batter the client. Agency Exhibit 3.

After hearing the confrontation, the Grievant did not report the incident to the Facility Director. He was preoccupied with monitoring the client under his and another employee’s supervision. Agency witnesses testified that the Grievant could have called for a replacement worker and immediately notified the Facility Director of the possible client abuse. It also would have been acceptable for the Grievant to contact the Facility Director after his shift ended which was approximately 30 minutes following the incident.

Grievant testified that he did not report the possible abuse to the Facility Director because he was unaware of the requirement.

Grievant began working for the Agency in 1995. No evidence was presented of any prior disciplinary action against the Grievant. He typically works the 3 p.m. to 11 p.m. shift and is employed as a Forensic Mental Health Technician.

Agency employees are governed by Departmental Instruction ("DI") 201 which requires the reporting of possible client abuse. This policy was effective in April 2000. Grievant signed an acknowledgement that he received a copy of DI 201 on May 19, 2000. Agency Exhibit 14. Employees were governed by Departmental Instruction 33 before DI 201 was effective. Grievant signed an acknowledgement that he received DI 33 on August 1, 1995. Agency Exhibit 11. DI 201 and DI 33 are substantially the same regarding an employee’s obligation to immediately report possible client abuse. Grievant signed an acknowledgement that he received the Employee Handbook on June 16, 1997. Agency Exhibit 12. The Handbook defines client abuse to include threats that are statements that would reasonably evoke fear in the client and requires employees to immediately report possible client abuse to the Facility Director. Agency Exhibit 13.

The Agency has provided Grievant with orientation and annual training on its client abuse policy. Agency Exhibit’s 4, 5, 6 and 7.

CONCLUSIONS OF LAW

Departmental Instruction 201 states:

Agency Exhibit 8.

Client abuse includes, "Use of language that demeans, threatens, intimidates or humiliates the person …." DI 201-3. The confrontation between the Forensic Mental Health Technician and a client was client abuse. Grievant knew or should have known that the confrontation could have been client abuse.

Employees must "immediately report any incident or allegation that could constitute abuse or neglect to the facility director." DI 201-4. Grievant failed to report the incident to the Facility Director. Employees who "fail to report incidents of suspected client abuse/neglect" shall be subject "to the full range of disciplinary actions, up to and including termination …." DI 201-8.

Grievant’s failure to timely report the client abuse shows the disciplinary action taken against him was appropriate under the Agency’s policies. Although the Agency’s policies may seem harsh, they clearly state the Agency has a zero tolerance for client abuse and for failure to report that client abuse.

Grievant argues he could not have contacted the Facility Director immediately because he was busy monitoring a client who was so dangerous the client required the supervision of two employees. Although this may have been true, the Grievant could have contacted the Facility Director at the end of his shift or the following morning. It is important that employees immediately report possible client abuse so that the Agency can take necessary actions to protect clients and to begin its investigation of the facts surrounding the alleged abuse.

Grievant contends that when he gave his written statement to the investigator, he did not realize he was providing evidence that could be used later to discipline him. Although Grievant may not have been aware of the consequences of his cooperation, nothing in policy or law prohibits the use of his statement against him in disciplinary actions. Since Grievant was not considered a criminal suspect, he was not required to be given warnings about his right against self-incrimination.

One can argue that by penalizing the Grievant even though he gave his full cooperation with the investigation, the Agency may be chilling future cooperation by the Grievant. Based on the Hearing Officer’s observations of the Grievant, however, it is unlikely the Grievant would ever refuse to cooperation with an investigation or speak untruthfully. His propensity for honesty appeared to be a fundamental and admirable part of his character.

The Facility Director testified that he considered mitigating circumstances before imposing the Group III Written Notice with 30 days suspended. The Grievant’s truthfulness and cooperation with the investigation was a mitigating factor, according to the Facility Director. Had the Grievant resisted the investigation, the Facility Director testified he would have terminated the Grievant. Issuing a Group III Written Notice with a 30 day suspension is consistent with Departmental Instruction 201."

DECISION

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group III Written Notice of disciplinary action with 30 days suspension is upheld.

APPEAL RIGHTS

As Sections 7.1 through 7.3 of the Grievance Procedure Manual set forth in more detail, this hearing decision is subject to administrative and judicial review. Once the administrative review phase has concluded, the hearing decision becomes final and is subject to judicial review.

Administrative Review – This decision is subject to four types of administrative review, depending upon the nature of the alleged defect of the decision:

1. A request to reconsider a decision or reopen a hearing is made to the hearing officer. This request must state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions is the basis for such a request.
2. A challenge that the hearing decision is inconsistent with state or agency policy is made to the Director of the Department of Human Resources Management. This request must cite to a particular mandate in state or agency policy. The Director’s authority is limited to ordering the hearing officer to revise the decision to conform it to written policy.
3. A challenge that the hearing decision does not comply with grievance procedure is made to the Director of EDR. This request must state the specific requirement of the grievance procedure with which the decision is not in compliance. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it complies with the grievance procedure.
4. In grievances arising out of the Department of Mental Health, Mental Retardation and Substance Abuse Services which challenge allegations of patient abuse, a challenge that a hearing decision is inconsistent with law may be made to the Director of EDR. The party challenging the hearing decision must cite to the specific error of law in the hearing decision. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it is consistent with law.

A party may make more than one type of request for review. All requests for review must be made in writing, and received by the administrative reviewer, within 10 calendar days of the date of the original hearing decision. (Note: the 10-day period, in which the appeal must occur, begins with the date of issuance of the decision, not receipt of the decision. However, the date the decision is rendered does not count as one of the 10 days; the day following the issuance of the decision is the first of the 10 days). A copy of each appeal must be provided to the other party.

A hearing officer’s original decision becomes a final hearing decision, with no further possibility of an administrative review, when:

1. The 10 calendar day period for filing requests for administrative review has expired and neither party has filed such a request; or,
2. All timely requests for administrative review have been decided and, if ordered by EDR or HRM, the hearing officer has issued a revised decision.

Judicial Review of Final Hearing Decision

Within thirty days of a final decision, a party may appeal on the grounds that the determination is contradictory to law by filing a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose. The agency shall request and receive prior approval of the Director before filing a notice of appeal.

Carl Wilson Schmidt, Esq.
Hearing Officer